Federal Register Vol. 83, No.109,

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

On December 15, 2011, BHTI applied for a type certificate for a new transport category helicopter designated as the Model 525. The Model 525 is a medium twin-engine rotorcraft. The design maximum takeoff weight is 20,500 pounds, with a maximum capacity of 19 passengers and a crew of 2.

The BHTI Model 525 helicopter will be equipped with a four-axis full authority digital FBW FCS that provides for aircraft control through pilot input and coupled flight director modes. The current 14 CFR part 29 regulations do not contain adequate standards for FBW FCS with respect to control margin awareness. The airworthiness standards for controllability and maneuverability of the rotorcraft are contained in § 29.143. These controllability requirements are compatible with most FBW systems, while most of the maneuverability requirements are not affected by FBW systems, except for the control margins. One of the purposes of the rule is to ensure that control margins (at the rotor and the anti-torque system level) are sufficient in the defined flight envelope to avoid loss of control (that is, the rotorcraft has adequate control power for the pilot to exit potentially hazardous flight conditions). Implicit in this purpose is that the pilot is provided with sufficient awareness of proximity to control limits. Because § 29.143 was written to address hydro-mechanical flight control systems, through which pilot awareness of control margins is provided by cyclic and pedal position relative to cockpit control stops, the rule is inadequate for certification of a FBW FCS, where there is no mechanical link between the inceptor and the receptor. Without a constant correlation between cockpit control and main or tail rotor actuator positions, the FCS may not provide tactile control margin feedback to the pilot through cockpit control position relative to the control position physical stop or limit, for all flight conditions. The proposed special conditions will require the minimum safety standard to ensure awareness of proximity to control limits at the main rotor and tail rotor is provided to pilots of the Bell Model 525 helicopter.

Under the provisions of 14 CFR 21.17, BHTI must show that the Model 525 helicopter meets the applicable provisions of part 29, as amended by Amendment 29-1 through 29-55 thereto. The BHTI Model 525 certification basis date is December 31, 2013, the effective date of application to the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 29) do not contain adequate or appropriate safety standards for the BHTI Model 525 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the BHTI Model 525 helicopter must comply with the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The BHTI Model 525 helicopter will incorporate the following novel or unusual design features: A four-axis full authority digital FBW FCS. Pilot control inputs, through the mechanically linked cockpit controls (cyclic, collective, directional pedals), are transmitted electrically to each of the three Flight Control Computers (FCCs). The pilot control input signals are then processed and transmitted to the hydraulic flight control actuators which affect control of the main and tail rotors.

The proposed special condition will require the minimum safety standard to ensure awareness of proximity to control limits at the main rotor and tail rotor is provided to pilots of the Bell Model 525 helicopter. The system design must provide the pilot with sufficient awareness of proximity to control limits, traditionally achieved through conventional flight controls by the pilot's inherent awareness of cyclic stick and pedal position relative to control stops.

As discussed above, these special conditions are applicable to the BHTI Model 525 helicopter. Should BHTI apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of rotorcraft. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Bell Helicopter Textron, Inc., Model 525 helicopters:

In addition to the existing § 29.143 requirements, the following special condition applies: The system design must ensure that the flight crew is made suitably aware whenever the means of primary flight control approaches the limits of control authority. For the context of this special condition, the term “suitable” indicates an appropriate balance between nuisance and necessary operation.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

On December 15, 2011, BHTI applied for a type certificate for a new transport category helicopter designated as the Model 525. The Model 525 is a medium twin-engine rotorcraft. The design maximum takeoff weight is 20,500 pounds, with a maximum capacity of 19 passengers and a crew of 2.

The BHTI Model 525 helicopter will be equipped with a four axis full authority digital FBW FCS that provides for aircraft control through pilot input and coupled flight director modes. The FBW FCS will contain an advanced flight control system that will alter the nominal flight control laws to ensure that the aircraft remains in a predetermined flight envelope. These Flight Envelope Protection (FEP) features prevent the pilot or autopilot functions from making control commands that would force the aircraft to exceed its structural, aerodynamic, or operating limits. The design and construction standards, specifically 14 CFR 29.779(a), require that movement of the flight controls results in a corresponding sense of aircraft motion in the same axis. The airworthiness standards for an automatic pilot system in § 29.1329 covers design requirements for basic operation of the system but does not address dynamic flight envelope limitations imposed by the automatic pilot system. Currently there are no specific airworthiness requirements that address FBW FCS FEP in rotorcraft. The proposed special conditions will require the minimum safety standard for the FEP features.

Under the provisions of 14 CFR 21.17, BHTI must show that the Model 525 helicopter meets the applicable provisions of part 29, as amended by Amendment 29-1 through 29-55 thereto. The BHTI Model 525 certification basis date is December 31, 2013, the effective date of application to the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 29) do not contain adequate or appropriate safety standards for the BHTI Model 525 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the BHTI Model 525 helicopter must comply with the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The BHTI Model 525 helicopter will incorporate the following novel or unusual design features: FBW FCS incorporating FEP features. FEP is used to prevent the pilot or an autopilot from making control commands that would force the rotorcraft to exceed its structural, aerodynamic, or operating limits. To accomplish this envelope limiting, the FCS control laws change as the limit is approached or exceeded.

The proposed special conditions will require the minimum safety standard for the flight envelope protection features. The FEP features must meet requirements for handling qualities, compatibility of flight parameter limit values, response to dynamic maneuvering, and failure modes.

As discussed above, these special conditions are applicable to the BHTI Model 525 helicopter. Should BHTI apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of rotorcraft. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Bell Helicopter Textron, Inc., Model 525 helicopters:

The Flight Envelope Protection (FEP) features of the FCS must meet the following requirements:

a. Onset characteristics of each envelope protection feature must be smooth, appropriate to the phase of flight and type of maneuver, and not in conflict with the ability of the pilot to satisfactorily change rotorcraft flight path, speed, or attitude within the approved flight envelope.

b. Limit values of protected flight parameters (and if applicable, associated warning thresholds) must be compatible with:

1. Rotorcraft structural limits;

2. Safe and controllable maneuvering of the rotorcraft;

3. Margins to critical conditions. Dynamic maneuvering, airframe and system tolerances (both manufacturing and in-service), and non-steady atmospheric conditions—in any appropriate combination and phase of flight—must not result in a limited flight parameter beyond the nominal design limit value that would cause unsafe flight characteristics;

4. Rotor rotational speed limits;

5. Blade stall limits; and

6. Engine and transmission torque limits.

c. The aircraft must be responsive to pilot-commanded dynamic maneuvering within a suitable range of the parameter limits that define the approved flight envelope.

d. The FEP system must not create unusual or adverse flight characteristics when atmospheric conditions or unintentional pilot action causes the approved flight envelope to be exceeded.

e. When simultaneous envelope limiting is active, adverse coupling or adverse priority must not result.

f. Following a single FEP failure shown to not be extremely improbable, the rotorcraft must:

1. Be capable of continued safe flight and landing;

2. Be capable of initial counteraction of malfunctions without requiring exceptional pilot skill or strength;

3. Be controllable and maneuverable when operated with a degraded FCS, within a practical flight envelope identified in the Rotorcraft Flight Manual;

4. Be capable of prolonged instrument flight without requiring exceptional pilot skill;

5. Meet the controllability and maneuverability requirements of 14 CFR part 29 Subpart B throughout a practical flight envelope; and

6. Be safely controllable following any additional failure or malfunction shown to not be extremely improbable occurring within the approved flight envelope.

On April 19, 2018, NFSI submitted a petition, docketed as CP 18-2, requesting that the Commission require manufacturers of floor coverings and coatings to label their products, and provide point-of-purchase information regarding slip-resistance, using the ANSI B101.5 voluntary standard. NFSI's petition request is a resubmission of a prior petition (CP 16-1), which the Commission voted to deny.1 The resubmitted petition contains certain modifications and additional information.

As with the previous petition, NFSI states that it seeks to reduce injuries and fatalities related to consumer slips and falls, particularly involving the elderly, by requesting CPSC to mandate that floor coverings for sale to consumers be labeled to provide information about the traction of each product. NFSI states that different types of floor coverings have wide ranging differences in slip-resistance, which can make certain types of flooring inappropropriate for a specific use. NFSI contends that currently, consumers have no uniform information to compare differences in traction with various floor covering options. NFSI states that the labeling it urges is easy to understand and will benefit consumers, particularly the elderly, by informing consumers of the traction or safety of the products at the point of sale.

Responding to commenters' and the Commission's concerns regarding the previous petition (CP 16-1), NFSI made modifications to the current petition request and provided additional information to support its petition for rulemaking. By this notice, the Commission seeks comments concerning this renewed petition, including whether the modifications and additional information provided by NFSI address the concerns set forth in the Commission's January 19, 2017 letter to NFSI denying petition CP 16-1.2 In particular, the Commission seeks comment on the petitioner's proposed method for determining wet dynamic coefficient of friction, and whether such method is accurate and repeatable on all hard surfaces that would be subject to the proposed labeling.

The petition is available at: http://www.regulations.gov, under Docket No. CPSC-2018-0014, Supporting and Related Materials. Alternatively, interested parties may obtain a copy of the petition by writing or calling the Office of the Secretariat, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-6833.

On December 1, 2017, the Office issued a notice of proposed rulemaking (“NPRM”) on proposed rules governing the royalty reporting practices of cable operators under section 111 and proposed revisions to the Statement of Account forms, and on proposed amendments to the Statement of Account filing requirements.1

On December 13, 2017, NCTA—The Internet & Television Association submitted a motion seeking to extend the initial comment period until March 16, 2018, with written reply comments due by April 2, 2018.2

On May 29, 2018, Program Suppliers submitted a motion seeking to extend the initial comment period until October 4, 2018, with written reply comments due by October 25, 2018 (“2018 Extension Request”).3 The 2018 Extension Request notes that NCTA—The Internet & Television Association supports the requested extension and that Joint Sports Claimants will not oppose it.4 In addition, the 2018 Extension Request states that the “parties have been developing their positions as to what and how reporting practices might be improved in light of intervening statutory and regulatory changes,” and “whether a consensus can be reached on some or all the issues raised” in the NPRM.5

To ensure that current remitters and other stakeholders have sufficient time to try and reach consensus on some or all of the issues raised in the NPRM, the Office is extending the deadline for the submission of initial written comments to 11:59 p.m. Eastern time on October 4, 2018. Written reply comments must be received no later than 11:59 p.m. Eastern time on October 25, 2018.

This is a summary of the Commission's Notice of Proposed Rulemaking, MB Docket No. 18-119, FCC 18-60, adopted and released May 10, 2018. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) website at http://fjallfoss.fcc.gov/ecfs2/. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The Notice of Proposed Rulemaking (NPRM) contains proposed information collection requirements subject to the PRA, Public Law 104-13. OMB, the general public, and other Federal agencies are invited to comment on the proposed new and modified information collection requirements contained in this NPRM.

Comments on the proposed information collection requirements should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

In addition to filing comments with the Secretary, a copy of any Paperwork Reduction Act comments on the information collection requirements contained herein should be submitted to Cathy Williams, via the internet to [email protected], and to Nicholas A. Fraser, Office of Management and Budget (OMB), via the internet to [email protected].

To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the Title of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed.

The proposed information collections are as follows:

OMB Control Number: 3060-xxxx.

Title: Sections 74.1203(a)(3), Interference, and 74.1204(f), Protection of FM broadcast, FM Translator and LP100 stations.

Type of Review: New collection.

Respondents: Business or other for-profit entities; Not-for-profit institutions; State, Local or Tribal Government.

Number of Respondents and Responses: 270 respondents; 270 responses.

Estimated Time per Response: 3-5 hours.

Frequency of Response: Third party disclosure requirement and on occasion reporting requirement.

Total Annual Burden: 1,080 hours.

Total Annual Cost: $924,100.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: On May 10, 2018, the Commission adopted a Notice of Proposed Rulemaking, Amendment of Part 74 of the Commission's Rules Regarding FM Translator Interference, FCC 18-60, MB Docket No. 18-119, proposing to streamline the rules relating to interference caused by FM translators and expedite the translator interference complaint resolution process. The proposals, if implemented, could limit or avoid protracted and contentious interference resolution disputes, provide translator licensees both additional flexibility to remediate interference and additional investment certainty, and allow expedited resolution of interference claims by affected stations.

The rule changes proposed in the NPRM would, if adopted, potentially increase the number of listener complaints that must be included with an interference claim to a minimum of six, and increase the amount of information to be included with each listener complaint to include signed listener statements regarding listening regularity and non-affiliation with the complaining station. In the NPRM, the Commission is seeking comment on its proposal to specify and clarify the information that must be contained in each listener interference complaint, thus potentially reducing lengthy and resource-intensive disputes over a listener's bona fides. To discourage the filing of poorly substantiated claims, the Commission is proposing to require that a minimum number of listener complaints be submitted with each translator interference claim and that listener complaints beyond a certain contour would not be actionable. Finally, the Commission is seeking comment on streamlining the interference resolution process by applying technical data, rather than relying on listener involvement, to demonstrate resolution of properly documented, bona fide listener complaints. Under this new information collection, the following information collection requirements require OMB approval.

The Commission proposes to amend §§ 74.1203(a)(3) (actual interference) and 74.1204(f) (predicted interference) of the rules to state that interference will be considered to occur whenever reception of a regularly used signal by six or more listeners, at separate locations using separate receivers, is impaired or is predicted to be impaired, by the signals radiated by the FM translator station.

The Commission also proposes to codify the § 74.1203(a)(3) and 74.1204(f) listener complaint requirements in § 74.1201(k). All listener complaints, whether submitted under § 74.1203(a)(3) or § 74.1204(f), must be signed by the listener and contain the following: (1) Full name and contact information; (2) a clear, concise, and accurate description of the location where the interference is alleged to occur; (3) to demonstrate that the complainant is a regular listener, a statement that the complainant listens to the desired station at least twice a month; and (4) to demonstrate that the complainant is disinterested, a statement that the complainant has no legal, financial, or familial affiliation with the desired station. In addition, stations submitting a translator interference claim pursuant to either § 74.1203(a)(3) or § 74.1204(f) must include a map plotting specific listener addresses in relation to the relevant station contours. Section 74.1204(f) complaints must also provide technical evidence of interference to the reception of the desired station at the listener locations specified, such as through U/D signal strength data.

Finally, in order to simplify and expedite the interference resolution process, the NPRM proposes to require that the FM translator operator, once interference has been initially established through bona fide listener complaints under either § 74.1203(a)(3) or § 74.1204(f), submit a technical showing that all interference has been eliminated. The NPRM proposes to require that this technical showing be based on the same U/D ratio methodology applicable to § 74.1204(f) complaints described above, in addition to on/off tests, if appropriate, and as directed by Commission staff.

OMB Control Number: 3060-0405.

Title: Application for Authority to Construct or Make Changes in an FM Translator or FM Booster Station, FCC Form 349.

Form Number: FCC Form 349.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities; State, Local or Tribal Government; Not-for-profit institutions.

Number of Respondents and Responses: 1,350 respondents; 2,700 responses.

Estimated Time per Response: 1-1.5 hours.

Frequency of Response: On occasion reporting requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in sections 154(i), 303 and 308 of the Communications Act of 1934, as amended.

Total Annual Burden: 5,050 hours.

Total Annual Cost: $5,291,550.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this information collection.

Needs and Uses: FCC Form 349 is used to apply for authority to construct a new FM translator or FM booster broadcast station, or to make changes in the existing facilities of such stations.

Form 349 also contains a third-party disclosure requirement, pursuant to 47 CFR 73.3580. This rule requires stations applying for a new broadcast station, or to make major changes to an existing station, to give local public notice of this filing in a newspaper of general circulation in the community in which the station is located. This local public notice must be completed within 30 days of the tendering of the application. This notice must be published at least twice a week for two consecutive weeks in a three-week period. In addition, a copy of this notice must be placed in the station's public inspection file along with the application, pursuant to 47 CFR 73.3527. This recordkeeping information collection requirement is contained in OMB Control No. 3060-0214, which covers § 73.3527.

On May 10, 2018, the Commission adopted a Notice of Proposed Rulemaking, Amendment of Part 74 of the Commission's Rules Regarding FM Translator Interference, FCC 18-60, MB Docket No. 18-119, proposing to streamline the rules relating to interference caused by FM translators, and expedite the translator interference complaint resolution process. The proposals, if implemented, could limit or avoid protracted and contentious interference resolution disputes, provide translator licensees both additional flexibility to remediate interference and additional investment certainty, and allow earlier and expedited resolution of interference complaints by affected stations.

In the NPRM, the Commission seeks comment on its proposal to offer additional flexibility to translator licensees, by allowing them to resolve interference issues using the effective and low-cost method of submitting a minor modification application to change frequency to any available FM channel. This method could potentially reduce the need for pleadings to be filed at a later stage to prosecute or defend an interference claim.

Specifically, the NPRM pertains to this Information Collection as it proposes to modify § 74.1233(a)(1) of the rules to define an FM translator station's change to any available FM channel as a minor change, filed using FCC Form 349, upon a showing of actual interference to or from any other broadcast station. Currently, if an existing FM translator causes actual interference as prohibited by § 74.1203(a), it is limited to remedial channel changes, filing FCC Form 349 as a minor change application, to first, second, or third adjacent, or IF channels. A change to any other channel is considered a major change on FCC Form 349, which currently may only be submitted during a filing window. The NPRM, if adopted, will enable more translator stations to cure interference by simply changing channels by filing Form 349 as a minor change application, rather than other costlier and less efficient remedies.

With this submission, the Commission is currently seeking to obtain OMB approval for the proposed revision to § 74.1233(a)(1) of the rules. This revision will modify the number of respondents, number of responses, annual burden hours, and annual costs for this collection.

1. In this Notice of Proposed Rulemaking (NPRM), the Commission proposes to streamline the rules relating to interference caused by FM translators and expedite the translator complaint resolution process, based in part upon the petitions for rulemaking filed by the National Association of Broadcasters (NAB) (NAB Petition) and Aztec Capital Partners, Inc. (Aztec) (Aztec Petition). Specifically, the Commission seeks comment on: (1) Allowing FM translators to resolve interference issues by changing channels to any available frequency using a minor modification application; (2) requiring a minimum number of listener complaints to be submitted with any FM translator interference claim; (3) standardizing the information that must be included within such a listener complaint; (4) streamlining and expediting interference complaint resolution procedures; (5) establishing an outer contour limit for the affected station beyond which listener complaints would not be considered actionable; and (6) modifying the scope of interference complaints permitted to be filed by affected stations at the application stage. The Commission's proposals also apply to booster stations, although we note that, as booster stations are limited in operation to the same channel as their primary station, the proposal to allow non-adjacent frequency changes by minor change application will not be available to booster stations. These proposals could, if implemented, limit or avoid protracted and contentious interference resolution disputes, provide translator licensees both additional flexibility to remediate interference and additional investment certainty, and allow earlier and expedited resolution of interference complaints by affected stations.

2. Recent substantial growth in the translator service, as well as the economic importance of translators for AM station viability, has led to increased industry interest in clarifying and streamlining the translator interference rules to create greater investment certainty and avoid protracted and expensive interference resolution disputes. As a secondary service, FM translators must not cause either predicted or actual interference to any authorized broadcast station. If interference is demonstrated, the translator must resolve the issue or cease operation. The Commission distinguishes between predicted interference, which is determined at the time a construction permit application is processed, and actual interference, which is determined after a translator station has begun operation. Under 47 CFR 74.1203(a), a translator is prohibited from causing actual interference to the direct reception by the public of the off-the-air signals of any authorized broadcast station at any time after the translator commences operation. Although listeners are permitted to submit interference complaints directly to the Commission, it is much more common for the affected station to submit a claim of actual interference to the Commission based on complaints obtained from its listeners. Under 47 CFR 74.1204(f), an application will not be granted if an objector provides convincing evidence that the predicted 60 dBµ contour of the translator would overlap a populated area already receiving a regularly used, off-the-air signal of any authorized co-channel, first, second or third adjacent channel broadcast station and grant of the authorization will result in interference to the reception of such signal.

3. Channel changes. If the Commission receives a valid interference complaint, the translator licensee must either eliminate the interference using “suitable techniques” or suspend operations. Changing channels is often the preferred solution, because it allows translators to quickly resolve interference at minimal cost and with little or any reduction in service area. However, this option is currently limited by 47 CFR 74.1233(a)(1), which restricts translator modifications that can be carried out using a minor change application to: (1) Channel changes to first, second, or third adjacent channels, or intermediate frequency channels; and (2) changes in antenna location where the translator station would continue to provide 60 dBµ service to some portion of its previously authorized 60 dBµ service area. Changes that do not qualify as minor may only be submitted during a filing window. In the NPRM, the Commission proposes to define an FM translator's change to any same-band available FM channel as a minor change upon a showing of interference to or from any other broadcast station. It anticipates that this measure would facilitate interference resolution, avoid time- and resource-consuming conflicts, and, in some cases, prevent translator stations from being forced to suspend operations. The Commission seeks comment on this proposal, and on whether to impose any minimum technical requirements on such showings, e.g., an engineering statement.

4. The Commission also seeks comment on limiting this flexibility to modification applications seeking channels within the same FM band (i.e., the reserved or non-reserved FM bands). Specifically, it proposes to modify § 74.1233(a)(1) to define any channel change for a translator from a non-reserved band frequency to a reserved band frequency, or vice versa, as a major change. Currently, this prohibition is limited to unbuilt stations. With the increased channel change activity that it anticipates will be generated by this proposal, as well as the overall growth of the FM translator service, the Commission believes that this measure is necessary to preserve the integrity of the filing window system.

5. Minimum number of listener complaints. The existing interference resolution process consists of Commission staff mediating interference disputes based upon as little as one listener complaint of interference. In the NPRM, the Commission proposes to require a minimum number of listener complaints to be submitted in support of any claim of translator interference. NAB suggests six listener complaints as a “reasonable starting point,” based on consultation with various industry stakeholders. This measure, NAB claims, would help avoid disputes over whether a claim supported by only one or two listeners has been adequately substantiated. A number of commenters suggested a higher required minimum number of listener complaints, such as ten, or a variable system based on the size of the market or population affected. The Commission seeks comment on whether six complaints is a reasonable threshold of listener complaints, noting that six listener complaints are required in the context of a digital FM signal causing interference to an analog station. Should the Commission vary this figure based on the population of the area affected, the total population served by the complaining station, or any other potential denominator, or would a single number work in most situations? Would it be administratively feasible to vary the figure in this way? Should the Commission apply this minimum complaint requirement in both predicted and actual interference contexts? If so, should the same minimum number apply to each rule section? The Commission proposes to apply this requirement to both translators and boosters and seeks comment on this proposal. Are there reasons to distinguish between translator and booster stations in this context? Is there a need to establish a maximum time period within which the required number of complaints must be obtained by the affected station and/or received by the Commission? Although most interference claims are submitted by the affected station, the Commission also seeks comment on appropriate procedures for handling complaints received directly from listeners. Should the Commission forward such complaints to the affected station licensee?

6. The Commission tentatively concludes that six represents a reasonable minimum of listener complaints that will address the concern that interference complaints may be inadequately substantiated without imposing too heavy an evidentiary burden on the complaining station. Therefore, the Commission proposes to amend §§ 74.1204(f) and 74.1203(a)(3) to state that interference will be considered to occur whenever reception of a regularly used signal by six or more listeners, at separate locations using separate receivers, is impaired or is predicted to be impaired by the signals radiated by the FM translator station. The Commission seeks comment on this proposal. Although the Commission proposes a minimum number of listener complaints, it tentatively concludes that it will not adopt NAB's proposal that the Commission require a showing of interference at a sufficient number of locations within the affected area to demonstrate “a real and consistent interference problem.” This proposal would have the Commission overlook or undervalue multiple listener complaints from the same approximate location, such as an apartment building, and is thus in tension with the Commission's focus on “reception by the public” in § 74.1203(a)(3) and prevention of interference to “populated areas” in § 74.1204(f). The Commission seeks comment on this conclusion.

7. Complaint requirements and remediation procedures. In the NPRM, the Commission observes that the interference resolution process is often delayed or sidetracked by disputes over the validity of the claimed interference, the objectivity of complaining listeners, or procrastination by one of the parties. Addressing these matters can be time-consuming for Commission staff and detrimental to one or both parties. Moreover, seemingly similar cases can vary in the time, effort, and expense needed to resolve them, leading to a perception of an ad hoc process with inconsistent outcomes. Although the Commission requires that listener complainants regularly listen to the affected station and be disinterested in the affected station, it currently does not require upfront listener certifications to this effect. Rather, listener bona fides are contested after the interference claim is submitted to the Commission.

8. The Commission seeks comment on mandating that all listener complaints, whether submitted under 47 CFR 74.1203(a)(3) or 74.1204(f), must be signed by the listener and contain the following: (1) Full name and contact information; (2) a clear, concise, and accurate description of the location where the interference is alleged to occur; (3) to demonstrate that the complainant is a regular listener, a statement that the complainant listens to the desired station at least twice a month; and (4) to demonstrate that the complainant is disinterested, a statement that the complainant has no legal, financial, or familial affiliation with the desired station. In addition, stations submitting a translator interference claim pursuant to either 47 CFR 74.1203(a)(3) or 74.1204(f) must include a map plotting specific listener addresses in relation to the relevant station contours. This proposal would not affect the existing 47 CFR 74.1204(f) requirement to provide technical evidence of interference to the reception of the desired station at the listener locations specified, such as through U/D signal strength data.

9. The Commission seeks comment on whether these strengthened upfront listener complaint requirements would significantly reduce challenges to a listener's bona fides and hence simplify and streamline translator interference proceedings. The Commission also proposes to clarify that listener complaints solicited by the station and/or presented in a standardized format, such as a list or form letter, will not be taken as evidence that a listener is impermissibly affiliated with the complaining station. Similarly, it proposes to clarify that social media connections, such as friending or following a station or its personnel on Facebook, Twitter, or other social media platforms, between listeners and the complaining station or its personnel will not be taken as evidence that a listener is impermissibly affiliated with the complaining station, because such a connection does not amount to a legal, economic, or familial interest in the station. The Commission seeks comment on these proposals.

10. The Commission also proposes that a listener complaint that meets the above content requirements will presumptively establish interference at the relevant location, which must then be promptly eliminated by the translator operator using any suitable technique—including, as appropriate, a modification application to change channels as proposed herein—or, if necessary, suspending operations. The Commission anticipates that the more formal and detailed complaint format proposed herein will reduce the need for staff involvement in disputes over the validity of complaints. Moreover, the Commission believes that the U/D signal ratio test procedure outlined below will minimize the need for staff involvement in the interference resolution process beyond: (1) Confirming the sufficiency of listener complaints submitted formally to the Commission; (2) notifying the relevant translator of such complaints and any applicable deadline for resolution; and (3) reviewing any technical showings purporting to establish that all interference has been resolved. The Commission also proposes to clarify that a listener whose complaint is sent to a station and then submitted as part of an interference claim or other request for relief filed by an affected station licensee is not entitled to protection under the ex parte rules because the listener has not submitted a filing with the Commission. Therefore, listener complainants are not parties to any proceeding that may be initiated by a complaint or other request for relief filed by a station licensee and are not entitled to protection under the ex parte rules. However, as before, a station licensee filing an interference claim or other request for relief is considered a party to the proceeding and entitled to protection under the ex parte rules. The Commission seeks comment on these proposals.

11. The Commission proposes to eliminate the current requirement that the complaining listener cooperate with remediation efforts. For example, a listener would not be required to accept equipment or equipment modifications (e.g., a new receiver) as a way of addressing interference. Instead, the Commission seeks comment on removing the listener from the complaint resolution process by requiring the translator operator, once interference has been initially established through listener complaints, to submit a technical showing that all interference has been eliminated. The Commission proposes to require this technical showing to be based on the same U/D ratio methodology applicable to 47 CFR 74.1204(f) complaints, using the standard contour prediction methodology specified in 47 CFR 73.313, in addition to on/off tests if appropriate and directed by Commission staff. A translator licensee could use these U/D showings to demonstrate the parameters with which it could operate on its current frequency and not cause interference. The Commission seeks comment on this proposal to simplify and expedite interference resolution. Will the U/D showings, in conjunction with the standard contour prediction methodology, be sufficient to make these determinations accurately in the majority of interference scenarios? The Commission notes that a number of commenters questioned the reliability of listeners' assessment of interference. Should the Commission rely exclusively on technical U/D showings as proposed, or continue to involve the listener if the listener alleges that he or she subjectively continues to experience interference despite U/D showings to the contrary? If on/off tests are included as part of the remediation process, what technical standards or procedures, if any, should be required regarding location, timing, receivers, etc.? Should the Commission require the use of specific receivers, or types of receivers, to promote consistent on/off test results? Would this proposal reduce or eliminate unproductive or unpleasant interactions between translator operators and complaining listeners? Finally, the Commission seeks comment on establishing an appropriate deadline for translators to resolve all properly substantiated interference complaints and submit an acceptable technical showing or be subject to suspension of operation. In addition to imposing a deadline on translators to resolve interference, are there other measures the Commission could take to expedite the interference resolution process? The Commission seeks comment on NAB's suggestion that it establish Commission deadlines for acting on interference complaints. Is this necessary should the Commission adopt deadlines on translators to resolve complaints? How should the Commission balance this work against its other competing priorities affecting radio broadcasters?

12. Limit on actual interference complaints. The Commission seeks comment on identifying a signal strength beyond which an FM station may not claim interference to its listeners from an FM translator. This proposal addresses a concern raised by Aztec and other commenters that the current rules encourage competitor licensees to file minimally substantiated claims against distant translators.

13. The Commission expresses reservations about two aspects of Aztec's proposal. First, the Commission believes that Aztec's proposal to prohibit translator interference only within the 60 dBµ contour of other stations would be inconsistent with translators' role as a secondary service, fundamentally changing the existing balance of equities between translators and other broadcast stations and affect the listening options for listeners outside the other broadcast station's protected contour. Second, the Commission tentatively concludes that it would not be advisable or administratively feasible to distinguish between fill-in and other area translators in this context, because it is a relatively simple matter for a translator licensee to change primary stations and hence change the fill-in status and protection obligations of the translator station. The Commission declines to assume that a fill-in translator presumptively provides “local” service or, conversely, that a complaining station is “distant” based merely on the distance between its transmitter site and certain of its listeners, particularly commuters. These terms may refer as much to programming content as to the proximity of the transmitter site. While the Commission's translator policy is intended to promote overall program diversity, it does not otherwise assess the value of content—again, taking into consideration the ease with which programming can be changed. For these reasons, the Commission does not seek comment on Aztec's suggestion to differentiate between fill-in and other area translators for interference protection purposes. However, the Commission seeks comment on possible alternative ways to address Aztec's underlying concerns.

14. The Commission proposes to identify a predicted signal contour within which most of a station's listeners are located and to not require the elimination of interference beyond that contour. The Commission believes that it can thus restrict stations from making specious interference allegations while preserving translators' status as a secondary service. This approach is similar to that used in the LPFM service and is based on the common language of §§ 74.1203(a)(3) and 74.1204(f), which prohibit interference to a “regularly used” broadcast signal, and § 74.1203(a)(3), which prohibits interference with another station's “reception by the public.” These provisions assume the existence of a signal capable of being regularly received by the public and therefore should not permit complaints regarding a signal that is not so received. Thus, the Commission concludes that this proposal is consistent with the secondary nature of translators. In this respect, it notes that the 60 dBµ contour standard is by no means an outer limit of listenability. Rather, this contour has been principally used as an allocations tool, which reflects a balance between providing adequate service areas and permitting a sufficient number of FM assignments.

15. For these reasons, the Commission proposes to modify 47 CFR 74.1203(a)(3) to state that no complaint of actual interference will be considered actionable if the alleged interference occurs outside the desired station's 54 dBµ contour. Would this contour limit achieve the goal of safeguarding the technical integrity of the FM band? Should there be different outer limits for interference complaints for FM stations in different Zones? The Commission tentatively concludes that the greater contour protections afforded to Class B and Class B1 in the non-reserved band are based on allocations concerns regarding populous service areas and thus do not affect this analysis or warrant separate treatment for Class B and Class B1 stations in this respect. The Commission seeks comment on this conclusion.

16. Observing that the actual interference provisions of 47 CFR 74.1203(a)(3) and 74.1203(b) have given rise to some of the most lengthy and contentious proceedings—as well as to allegations of negative interactions between translator operators and complaining listeners—the Commission proposes to reduce reliance on actual interference complaints by harmonizing the scope of complaints that can be preemptively brought under 47 CFR 74.1204(f) with those that are based on allegations of actual interference. Specifically, it seeks comment on amending 47 CFR 74.1204(f) to allow an objector to submit evidence of bona fide listeners that are within the complaining station's predicted 54 dBµ contour rather than, as currently, the relevant translator's “predicted 1 mV/v (60 dBµ) contour.” By modifying the scope of predicted interference claims to more closely reflect post-grant actual interference requirements, the Commission anticipates that more potential conflicts can be resolved before applicants are fully invested in the proposed facility and may have greater flexibility in pursuing remedial steps. The Commission seeks comment on whether this proposal would encourage translator applicants and their engineers to propose facilities that are more viable in the long term. It tentatively concludes that the proposal is consistent with section 5(3) of the Local Community Radio Act of 2010 (LCRA), which states that the Commission must, when licensing new FM translator stations, ensure that they remain secondary to existing and modified full service FM stations. The proposal to modify the existing limitation in § 74.1204(f) will expand the geographic scope of potential interference complaints against translators by full service stations in most cases. In addition, as discussed above, this proposal is consistent with the secondary nature of translators. The Commission seeks comment on this conclusion.

17. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities of the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

18. In this NPRM, the Commission seeks comment on whether to modify certain standards and procedures relating to FM translator interference complaints. Specifically, the Commission seeks comment on the following proposals: (1) Allowing translators to resolve interference issues by changing channels to any available FM frequency using a minor modification application; (2) requiring a minimum number of listener complaints to be submitted with any FM translator interference claim; (3) clarifying the information that must be included within a listener complaint; (4) establishing an outer contour limit for the affected station beyond which listener complaints would not be actionable; (5) modifying the scope of interference complaints permitted to be filed by affected stations at the application stage; and (6) streamlining and expediting interference complaint resolution procedure. These proposals could, if implemented, avoid protracted and contentious interference resolution disputes, provide translator licensees additional flexibility to remediate interference, provide translator licensees with additional investment certainty, and allow earlier and expedited resolution of interference complaints by affected stations.

19. The proposed action is authorized pursuant to sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319.

20. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

21. Radio Stations. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard, the majority of such entities are small entities.

22. According to BIA/Kelsey Publications, Inc.'s Media Access Pro Database, on March 30, 2018, 10,859 (or about 99.94 percent) of the then total number of FM radio stations (10,865); 4,629 (or about 99.94 percent) of the then total number of AM radio stations (4,632); and all of the 7,238 total FM translator stations (100 percent) had revenues of $38.5 million or less for the year ending 2017, and thus qualify as small entities under the SBA definition. We note that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. This estimate, therefore, likely overstates the number of small entities that might be affected, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

23. As noted above, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

24. The rule changes proposed in the NPRM would, if adopted, potentially increase the number of listener complaints that must be included with an interference claim to a minimum of six and increase the amount of information to be included with each listener complaint to include signed listener statements regarding listening regularity and disinterestedness in the complaining station. However, licensees are encouraged to resolve interference complaints privately and the recourse of filing an interference claim with the Commission is purely voluntary. Moreover, the type of information to be filed (i.e., information required to be included with listener complaints) is already familiar to broadcasters, so the additional paperwork burdens would be minimal.

25. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

26. In the NPRM, the Commission seeks comment on its proposal to offer additional flexibility to translator licensees, including small entities, by allowing them to resolve interference issues using the effective and low-cost method of submitting a minor modification application to change frequency to any available FM channel. We also propose to clarify the information that must be contained in each listener interference complaint, thus potentially reducing lengthy and resource-intensive disputes over listener bona fides. The Commission does not anticipate that the proposed certifications would add much, if any, time needed to collect each listener complaint. These requirements could also potentially reduce the need for pleadings to be filed at a later stage to prosecute or defend an interference claim. To discourage the filing of poorly substantiated interference claims, we propose to require that a minimum number of listener complaints be submitted with each FM translator interference and that listener complaints beyond a certain contour would not be considered actionable. Finally, the Commission seeks comment on streamlining the FM translator interference resolution process by relying on technical data rather than requiring listener involvement with the resolution process after prima facie interference has been established by a minimum number of properly documented listener complaints. We anticipate that these proposals will facilitate a consistent and fair interference claim resolution process and reduce the number of prolonged and contentious FM translator proceedings. Alternatives considered by the Bureau include retaining the existing process, requiring a greater or lesser number of listener complaints to be submitted with each claim, establishing a greater or lesser contour beyond which listener complaints would not be considered actionable, and alternative forms of technical data, such as field strength tests, to demonstrate resolution of translator interference complaints. The NPRM requests comment on the effect of the proposed rule changes on all affected entities. The Commission is open to consideration of alternatives to the proposals under consideration, including but not limited to alternatives that will minimize the burden on FM broadcasters, many of whom are small businesses.

27. None.

28. Permit But Disclose. The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. Memoranda must contain a summary of the substance of the ex parte presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the rules. In proceedings governed by § 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

29. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

○ Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

• People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

30. It is ordered that, pursuant to the authority contained in § 1.407 of the Commission's rules, 47 CFR 1.407, the Petitions for Rulemaking filed by National Association of Broadcasters and Aztec Capital Partners, Inc. are granted to the extent specified herein.

31. It is further ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319, this Notice of Proposed Rulemaking is adopted.

32. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 74 as follows:

NMFS manages the groundfish fisheries in the exclusive economic zone of the BSAI under the BSAI FMP. The North Pacific Fishery Management Council (Council) prepared the BSAI FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the BSAI FMP appear at 50 CFR parts 600 and 679.

This proposed rule would implement Amendment 116 to the BSAI FMP. The Council submitted Amendment 116 for review by the Secretary of Commerce (Secretary), and a Notice of Availability (NOA) of Amendment 116 was published in the Federal Register on May 18, 2018, with comments invited through July 17, 2018. Comments submitted on this proposed rule by the end of the comment period (See DATES) will be considered by NMFS and addressed in the response to comments in the final rule. Comments submitted on this proposed rule may address Amendment 116 or this proposed rule. However, all comments addressing Amendment 116 must be received by July 17, 2018, to be considered in the approval/disapproval decision on Amendment 116. Commenters do not need to submit the same comments on both the NOA and this proposed rule. All relevant written comments received by July 17, 2018, whether specifically directed to the FMP amendment, this proposed rule, or both, will be considered by NMFS in the approval/disapproval decision for Amendment 116 and addressed in the response to comments in the final rule.

In June 2017, the Council adopted Amendment 116. If approved by the Secretary, Amendment 116 would require that a vessel be designated on a groundfish LLP license with a BSAI TLAS yellowfin sole directed fishery endorsement for that vessel to be used to harvest yellowfin sole in the BSAI TLAS yellowfin sole directed fishery and deliver that catch to a mothership. The terms “directed fishery” and “mothership” are defined at 50 CFR 679.2. A groundfish LLP license would be eligible for such an endorsement if it is credited with at least one qualifying landing, where the term “qualifying landing” would be defined under this proposed rule as a legal trip target landing in the BSAI TLAS yellowfin sole directed fishery made to a mothership in any one year from 2008 through 2015. Under this proposed rule, the term “trip target” would be defined as a groundfish species that is retained in an amount greater than the retained amount of any other groundfish species for that trip. For those vessels used to make a qualifying landing, only one groundfish LLP license on which the vessel was designated during the qualifying period would be eligible to receive the endorsement under this proposed rule. If a vessel that made at least one legal trip target landing in the BSAI TLAS yellowfin sole directed fishery from 2008 through 2015 (qualifying period) was designated on more than one groundfish LLP license during the qualifying period, the vessel owner would be required to select one groundfish LLP license that would receive credit for the qualifying landing(s) and receive a BSAI TLAS yellowfin sole directed fishery endorsement.

The following sections of this preamble provide a description of (1) the LLP, the BSAI TLAS yellowfin sole directed fishery, and related management programs; (2) the need for this proposed rule; and (3) the proposed eligibility criteria and process for obtaining new endorsements authorizing delivery of BSAI TLAS yellowfin sole directed fishery catch to motherships.

The Council and NMFS have long sought to control the amount of fishing effort in the BSAI groundfish fisheries to ensure that the fisheries are conservatively managed and do not exceed established biological thresholds. One of the measures used by the Council and NMFS to control fishing effort is the LLP, which limits access to the groundfish fisheries in the BSAI. With some limited exceptions, the LLP requires that persons hold and designate on a groundfish LLP license each vessel that is used to fish in Federally managed groundfish fisheries. The LLP is intended to prevent unlimited entry into groundfish fisheries managed under the BSAI FMP.

The LLP for BSAI groundfish fisheries was recommended by the Council as Amendment 39 to the BSAI FMP. The Council adopted the LLP for BSAI groundfish in June 1995, and NMFS approved Amendment 39 on September 12, 1997. NMFS published the final rule to implement the LLP on October 1, 1998 (63 FR 52642), and fishing under the LLP began on January 1, 2000. The preamble to the final rule implementing the BSAI groundfish LLP and the EA/RIR/IRFA prepared for that action describe the rationale and specific provisions of the LLP in greater detail (see ADDRESSES) and are not repeated here.

The key components of the LLP are briefly summarized as follows. The BSAI groundfish LLP established specific criteria that must be met to allow a vessel to receive a groundfish LLP license and continue to be eligible to fish in directed groundfish fisheries managed under the BSAI FMP. Vessels under 32 feet length overall (LOA) in the BSAI, and vessels using jig gear in the BSAI that are less than 60 feet LOA and that deploy no more than five jigging machines are exempt from the requirements to have a groundfish LLP license.

Under the LLP, NMFS issued licenses that (1) endorse fishing activities in specific regulatory areas in the BSAI; (2) restrict the length of the vessel on which the LLP license may be used; (3) designate the fishing gear that may be used on the vessel (i.e., trawl or non-trawl gear designations); and (4) designate the type of vessel operation permitted (i.e., specify whether the vessel designated on the LLP license may operate as a catcher vessel or as a catcher/processor). LLP licenses are issued so that the endorsements for specific regulatory areas, gear designations, and vessel operational types are non-severable from the LLP license (i.e., once issued, the components of the LLP license cannot be transferred independently). By creating LLP licenses with these characteristics, the Council and NMFS limited the ability of a person to use an assigned LLP license—which was derived from the historic fishing activity in one area with a specific fishing gear or operational type—in other areas, with other gears, or for other operational types. The Council's intent of such limitation was to curtail the ability of the LLP license holder to expand fishing capacity, which could decrease the benefits derived by the existing participants from those other fisheries. The preamble to the final rule implementing the BSAI groundfish LLP provides a more detailed explanation of the rationale for specific provisions in the LLP (63 FR 52642, October 1, 1998).

In order to receive a BSAI groundfish LLP license, a vessel owner had to meet minimum landing requirements with the vessel during a specific time frame. Specifically relevant to this proposed rule, a vessel owner received a BSAI groundfish LLP license endorsed for a specific regulatory area in the BSAI (the Bering Sea (BS), the Aleutian Islands (AI), or both) if that vessel met specific harvesting and landing requirements for that specific regulatory area during the qualifying periods established in the final rule implementing the LLP (63 FR 52642, October 1, 1998). NMFS issued groundfish LLP licenses with a catcher vessel (CV) operation type if a vessel caught but did not process its catch at-sea during the specific qualifying periods; and NMFS issued groundfish LLP licenses with a catcher/processor (CP) endorsement if a vessel caught and processed its own catch at-sea during the specific qualifying periods (63 FR 52642, October 1, 1998). As an example, in order to receive a groundfish LLP endorsed for trawl gear in the AI with a CP designation, a vessel must have met the minimum groundfish harvesting and landing requirements for the AI using trawl gear during the qualifying period, and must have processed the qualifying catch on board the vessel.

The yellowfin sole (Limanda aspera) is one of the most abundant flatfish species in the eastern Bering Sea and is the target of the largest flatfish fishery in the United States. They inhabit the eastern Bering Sea shelf and are considered one stock. Abundance in the Aleutian Islands region is negligible. The BSAI yellowfin sole directed fishery was historically managed under a total allowable catch (TAC) limit that could be harvested by eligible vessels. In 1998, regulations allocated a portion of the TAC to the Community Development Quota (CDQ) Program (63 FR 8356, February 19, 1998). The allocation of the BSAI yellowfin sole TAC was further modified in the late 2000s when the Council recommended and NMFS approved and implemented Amendment 80 to the BSAI FMP (72 FR 52668, September 14, 2007).

Along with other measures, Amendment 80 allocated six BSAI non-pollock groundfish species among two trawl fishery sectors. The six species, known as “Amendment 80 species,” include Aleutian Islands Pacific ocean perch, BSAI Atka mackerel, BSAI flathead sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin sole. These species are allocated for harvest between the Amendment 80 sector, comprised of specific vessels identified under Amendment 80, and all other BSAI trawl fishery participants not in the Amendment 80 sector. The other BSAI trawl fishery participants include American Fisheries Act (AFA) CPs, AFA CVs, and non-AFA CVs. Collectively, this group of other, or non-Amendment 80, trawl fishery participants comprises the BSAI TLAS. The BSAI TLAS is defined at 50 CFR 679.2. The BSAI TLAS fisheries are conducted in the BSAI using trawl gear, using non-Amendment 80 vessels designated on a non-Amendment 80 LLP license, and do not include CDQ groundfish fisheries or fishing for CDQ groundfish.

Each year, NMFS allocates the initial total allowable catch (ITAC) of the six Amendment 80 species, as well as crab and halibut prohibited species catch (PSC) limits, between the Amendment 80 sector and the BSAI TLAS. Allocations made to the Amendment 80 sector are exclusive to the Amendment 80 sector and not subject to harvest in other fishery sectors. The Amendment 80 sector is precluded from harvesting Amendment 80 species allocated to the BSAI TLAS. The Council's intent in establishing the BSAI TLAS was to provide harvesting opportunities for AFA CPs, AFA CVs, and non-AFA CVs.

The ITAC represents the amount of TAC for each Amendment 80 species that is available for harvest after allocations to the CDQ program and the incidental catch allowance (ICA) have been subtracted. The ICA is an amount set aside for the incidental harvest of each Amendment 80 species by non-Amendment 80 vessels targeting other groundfish species in non-trawl fisheries and in the BSAI TLAS fisheries. The annual proportion of yellowfin sole ITAC allocated to the Amendment 80 sector and the BSAI TLAS depends on the amount at which the yellowfin sole ITAC is set. As the amount of ITAC for BSAI yellowfin sole increases, the proportion of the ITAC assigned to the BSAI TLAS also increases.

To further accommodate yellowfin sole harvest opportunities for the BSAI TLAS, the Amendment 80 Program relieves AFA sideboard limits for yellowfin sole when the yellowfin sole ITAC is equal to or greater than 125,000 metric tons (mt). The lifting of AFA sideboard limits for yellowfin sole allows AFA vessels to increase their yellowfin sole TLAS harvest, particularly in periods of reduced availability of pollock. Implementation of the AFA included the establishment of harvesting and processing limits, known as sideboards, to protect vessels and processors in other, non-pollock fisheries from spillover effects resulting from the rationalization and privatization of the BSAI pollock fishery. The need for AFA sideboard limits for yellowfin sole was reduced with Amendment 80, because most of the yellowfin sole ITAC is allocated to the Amendment 80 sector for exclusive harvest, and AFA vessels no longer directly compete with the Amendment 80 sector for yellowfin sole. Since 2008, the yellowfin sole ITAC has been higher than 125,000 mt, so yellowfin sole sideboard limits have not been in place for AFA vessels since implementation of Amendment 80. Additional detail on the rationale for the specific allocations in the BSAI TLAS yellowfin sole fishery, and the management of AFA sideboards is provided in the final rule implementing Amendment 80 (72 FR 52668, September 14, 2007).

Although the Council was clear in its intent to prohibit Amendment 80 vessels from harvesting Amendment 80 species allocated to the BSAI TLAS, the Council did not specifically address during its development of Amendment 80 whether Amendment 80 vessels should be eligible to serve as processing platforms for the BSAI TLAS sector. A vessel that receives and processes groundfish from other vessels is referred to as a “mothership” (see definition at 50 CFR 679.2). Although Amendment 80 vessels operate as CPs in the Amendment 80 sector (i.e., the vessels catch and process their own catch), Amendment 80 vessels meet the regulatory definition of a mothership when they receive and process catch from catcher vessels fishing in the BSAI TLAS fisheries.

The final rule implementing Amendment 80 clarified that Amendment 80 vessels could be used as motherships for catcher vessels fishing in the BSAI TLAS fisheries, based on public comments received on the proposed rule to implement Amendment 80, further analysis by NMFS, and the lack of clearly stated Council intent to the contrary. The final rule implementing Amendment 80 modified the proposed regulations to permit this activity, noted that this revision accommodated one Amendment 80 vessel that had historically been used as a mothership, and acknowledged that the revision provided for potential future growth in the use of Amendment 80 vessels as motherships in the BSAI TLAS. A detailed description of the Council's intent and NMFS' actions regarding limitations of Amendment 80 vessels catching, receiving, and processing fish assigned to the BSAI TLAS is provided in the proposed rule (72 FR 30052, May 30, 2007) and in the final rule implementing Amendment 80 (72 FR 52668, September 14, 2007).

The current BSAI TLAS yellowfin sole directed fishery is almost entirely an offshore fishery composed of two primary groups: (1) AFA CPs, and (2) AFA and non-AFA CVs delivering yellowfin sole to AFA and Amendment 80 CPs operating as motherships. Section 2.7.1.1 of the Analysis considered by the Council for this action noted that two stationary floating processors participated in the fishery as motherships prior to 2009. Although those processors did not participate in the fishery after 2008, data from landings to those vessels were included in the analysis of impacts of the alternatives. For purposes of this proposed rule a stationary floating processor is considered a mothership. In this preamble, NMFS uses the term “offshore sector” when referring to vessels that are harvesting BSAI TLAS yellowfin sole and either delivering that catch to motherships for processing or processing their own catch. AFA CPs participate in the offshore sector by (1) catching and processing yellowfin sole (i.e., operating as a CP); (2) receiving and processing deliveries of yellowfin sole from CVs (i.e., operating as a mothership); or (3) catching and delivering their harvest to other CPs operating as motherships for processing (i.e., operating as a CV). No AFA CPs have operated solely as motherships (i.e., vessels that do not harvest fish and only receive catch for processing) in the BSAI TLAS yellowfin sole directed fishery since it began in 2008.

The BSAI TLAS yellowfin sole TAC was not fully harvested during the first five years of the fishery (2008 through 2012) due to limited fishing effort combined with high allocations. During this five-year period, harvests ranged from a low of 31 percent of the TAC in 2009 to a high of 87 percent of the TAC in 2010. Since 2013, the BSAI TLAS yellowfin sole TAC has been more fully harvested with at least 93 percent of the TAC harvested in each year (Section 2.6.1.2 of the Analysis).

Since implementation of the BSAI TLAS yellowfin sole directed fishery in 2008, the number of AFA CPs actively fishing and processing has ranged from 8 to 12 vessels. Until 2015, AFA CPs harvested about 85 percent of the total catch in the BSAI TLAS yellowfin sole directed fishery. However, the percentage of total catch harvested by AFA CPs has diminished each year since 2015, and comprised approximately 42 percent of the total harvest in 2017. Harvest patterns of AFA CPs also have changed since the inception of the fishery. From 2008 to 2010, participating AFA CPs fished from January 20th through February and occasionally into March or April each year. Starting in 2011, prosecution of the fishery by AFA CPs developed into two distinct fishing patterns. The first pattern consists of most participating AFA CPs fishing for only two weeks beginning January 20th each year. The second pattern generally consists of two AFA CPs fishing all year. Section 2.7.1.1 of the Analysis provides additional detail on the participation and harvesting patterns in the BSAI TLAS yellowfin sole fishery.

From 2008 through 2014, the annual number of AFA and non-AFA CVs participating in the BSAI TLAS yellowfin sole offshore sector ranged from zero to three vessels. The annual number of participating CVs increased to six in 2015 and to nine in 2016. In 2017, eight CVs participated in the fishery, with one CV being a new entrant to the fishery. The CV share of the total BSAI TLAS yellowfin sole directed fishery harvest rose from an average of 17 percent each year from 2008 through 2014 to 45 percent in 2015, 48 percent in 2016, and 58 percent in 2017 (Section 2.7.1.1 of the Analysis).

Harvest patterns for CVs in the BSAI TLAS yellowfin sole directed fishery have also changed over time. In 2008, participating CVs fished BSAI TLAS yellowfin sole from March until December. After the first year of the fishery, CVs fished BSAI TLAS yellowfin sole in April, September, and October. Starting in 2012, CVs fished BSAI TLAS yellowfin sole until the season ended or NMFS closed the fishery to directed fishing. From 2012 through 2015, this meant that CVs fished in the BSAI TLAS yellowfin sole directed fishery throughout most of the year. However, in 2016 and 2017, the fishing season was significantly shortened, with NMFS closing the fishery in June and May, respectively, due to the TAC being reached. Section 2.7.1.1 of the Analysis provides additional detail on the participation and harvesting patterns in the BSAI TLAS yellowfin sole fishery.

CPs operating as motherships take deliveries of harvested BSAI TLAS yellowfin sole from CVs and CPs acting as CVs for at-sea processing. Only one Amendment 80 CP acting as a mothership participated in the fishery from 2008 through 2014. From 2015 through 2017, the number of CPs operating as motherships and receiving catch from CVs expanded to seven vessels. In 2017, six Amendment 80 CPs and one AFA CP operated as motherships for CVs in the BSAI TLAS yellowfin sole directed fishery. The increased use of Amendment 80 vessels operating as motherships has increased opportunities for CV deliveries. This increased opportunity is demonstrated by the increased number of CVs that participated in 2015 through 2017, and the higher proportion of BSAI TLAS yellowfin sole catch that was harvested by CVs in 2015 through 2017 relative to previous years. Section 2.7.1.1 of the Analysis provides additional detail on the factors affecting mothership patterns in the BSAI TLAS yellowfin sole fishery.

The potential exists for additional motherships and CVs to participate in the BSAI TLAS yellowfin sole directed fishery. Section 2.7.1.1 of the Analysis estimates that up to seven additional Amendment 80 CPs could enter the BSAI TLAS yellowfin sole offshore sector as motherships based on a range of factors described in the Analysis. These motherships could provide processing capacity for up to 21 additional CVs. These estimates likely represent the maximum potential expansion of capacity in the BSAI TLAS yellowfin sole directed fishery. Section 2.7.1.1 of the Analysis provides additional detail on the potential for new motherships and CVs to enter the BSAI TLAS yellowfin sole fishery.

NMFS monitors the bycatch of halibut in the BSAI TLAS yellowfin sole directed fishery against the halibut PSC limits established for the fishery, and will close or otherwise restrict trawl harvests of BSAI TLAS yellowfin sole if halibut PSC limits are projected to be reached. Fishery closures due to reaching halibut PSC limits can occur before the BSAI TLAS yellowfin sole TAC is fully harvested, thereby reducing overall revenue to vessel operators and crew. To avoid this outcome, vessel operators may accelerate fishing operations to maximize harvest of yellowfin sole before the halibut PSC limit is reached.

The halibut PSC limit for the BSAI TLAS yellowfin sole directed fishery ranged between 162 to 241 mt from 2008 through 2014, with the halibut PSC limit being exceeded in 2013 by 18 mt. In 2014, 60 mt of halibut PSC was reapportioned from the BSAI TLAS Pacific cod fishery to the BSAI TLAS yellowfin sole fishery to allow the fishery to remain open for the rest of the year for participants to harvest the remaining BSAI TLAS yellowfin sole TAC. From 2015 through 2017, the halibut PSC limit was between 150 to 167 mt, but it was not reached in any of these years before the fishery closed when the BSAI TLAS yellowfin sole TAC was fully harvested. Halibut mortality rates for the BSAI TLAS yellowfin sole directed fishery for 2008 through 2017 ranged from 1.11 to 6.55 kg halibut per mt groundfish, with a generally increasing trend from 2010 through 2016, followed by a drop in 2017.

Given the recent and dramatic increases in CV and mothership participation that have occurred in the BSAI TLAS yellowfin sole directed fishery and the expectation of additional capacity entering the fishery, the Council identified three management and conservation concerns that it wanted to address with Amendment 116: (1) The likelihood of decreasing benefits from the fishery for long-time, historic, and recent participants given the increasing number of participants in the fishery and shorter fishing seasons; (2) an increased risk of a race for fish; and (3) the potential for higher halibut bycatch. The Council noted the increase in the number of participating CVs combined with recent lower BSAI TLAS yellowfin sole allocations was resulting in a fully utilized fishery with increasingly shorter fishing seasons. Shorter fishing seasons can be more difficult for NMFS to manage catch within established limits and increase the incentives for vessels to harvest quickly in order to harvest a greater share of the TAC before it is fully harvested and the fishery is closed. This “race for fish” may result in fishing with less care and the potential for increased halibut PSC rates which could lead to closure of the fishery before the TAC is fully harvested. Public testimony to the Council included concerns that the shorter fishing season was having a negative effect on access to the fishery by CVs that participated in the fishery prior to 2015.

In order to address these concerns, the Council determined that management measures are needed that would limit access to the BSAI TLAS yellowfin sole directed fishery by vessels harvesting BSAI TLAS yellowfin sole and delivering their catch to a mothership for processing. Specifically, the Council recommended as its preferred alternative for Amendment 116 that a vessel would be eligible to participate in the BSAI TLAS yellowfin sole directed fishery and deliver its catch to a mothership only if that vessel was designated on a groundfish LLP license that has been credited with at least one trip target landing in the BSAI TLAS yellowfin sole directed fishery made to a mothership or catcher/processor in any one year from 2008 through 2015. The Council recognized that this eligibility criterion may qualify more groundfish LLP licenses than vessels with a qualifying landing, because some vessels with a qualifying landing may have been designated on more than one groundfish LLP license during the qualifying period. Therefore, the Council also recommended that if a vessel with a qualifying landing was designated on more than one groundfish LLP license during the qualifying period, only those groundfish LLP licenses on which the vessel was designated, when the vessel was used to make at least one trip target landing in a BSAI TLAS fishery from 2008 through 2015, would be eligible to be credited with a qualifying landing. In such cases, the vessel owner would be required to select one of these eligible groundfish LLP licenses to receive credit with the qualifying landings. Under the proposed rule, groundfish LLP licenses that meet the eligibility criteria and are credited with a qualifying landing would receive from NMFS a groundfish LLP endorsement that would authorize participation in the offshore BSAI TLAS yellowfin sole directed fishery. Vessels not designated on groundfish LLP licenses that receive the endorsement would be prohibited from participating in the BSAI TLAS yellowfin sole directed fishery and delivering their catch to a mothership for processing.

The Council determined and NMFS agrees that limiting CV access to the offshore BSAI TLAS yellowfin sole directed fishery is necessary to ease the likelihood of increased harvesting pressure and the shortening of the fishing season, mitigate the risk that a “race for fish” could continue to develop and accelerate, and help to maintain the consistently low rates of halibut bycatch in the BSAI TLAS yellowfin sole directed fishery. The Council also determined, and NMFS agrees, that this proposed rule would reasonably balance the need to limit additional future and very recent speculative entry to the BSAI TLAS yellowfin sole directed fishery to help control the pace of fishing with the need to provide continued access and benefits to historic, long time and more recent participants.

The Council determined and NMFS agrees that the proposed action would likely prevent the fishing season from shortening further because it removes the ability for additional capacity to enter the fishery and harvest the TAC or reach halibut PSC limits more quickly. As described in Section 2.7.1.2 of the Analysis, the fishing seasons in 2016 and 2017 were the shortest on record for this fishery at the time of the highest levels of CV participation and with CVs harvesting the highest proportion of the fishery's TAC. The pace of fishing during those fishing seasons may have increased due to additional speculative entry and concerns by ongoing participants about the increasing competition. This proposed rule could help lengthen the fishing season and mitigate a “race for fish” by limiting the eligible groundfish LLP licenses, such that participation is generally representative of the 2015 fishing year, when the season lasted until late in the year. This proposed rule also could help lengthen the fishing season and mitigate a “race for fish” by allowing eligible CVs more flexibility in fishing operations through predictable levels of competition. That flexibility may help improve fishing efficiency and reduce halibut PSC in the fishery by allowing vessels to take steps to reduce halibut PSC, such as leaving or avoiding areas of high halibut concentration. At a minimum, the proposed action is expected to minimize further negative impact on the resources that could occur if CV participation in the fishery were maintained at 2016 levels or allowed to continue to increase. The proposed action may also help to facilitate voluntary best practices agreements between CVs and AFA CPs in the BSAI TLAS yellowfin sole directed fishery to avoid halibut PSC. The Council also considered whether this proposed action could have adverse impacts on other fisheries, specifically the BSAI TLAS Pacific cod fishery, if CVs or motherships were displaced from participation in the BSAI TLAS yellowfin sole fishery. As described in Section 2.7.2.1 of the Analysis and later in this preamble, the Council concluded, and NMFS agrees, that such adverse impacts are not likely.

Under the LLP, a license can be transferred to a different vessel that is eligible to be designated on that LLP license, but only one vessel can be designated on an LLP license at any given time. Additionally, a vessel may be designated on more than one LLP license at one time. Therefore, the number of eligible groundfish LLP licenses presented in this proposed rule and the Analysis represents the maximum number of CVs that NMFS currently has determined would be eligible to conduct directed fishing for BSAI TLAS yellowfin sole. If Amendment 116 is approved and this proposed rule is finalized, fewer and/or different CVs designated on groundfish LLP licenses with a BSAI TLAS yellowfin sole directed fishery endorsement may be used to conduct directed fishing for BSAI TLAS yellowfin sole and deliver the catch to a mothership. The Analysis uses the current groundfish LLP license vessel designations to describe the likely impacts of the proposed action, because it is not possible to know how the vessel designations on groundfish LLP licenses may change in the future.

The Council considered a range of options that would qualify a groundfish LLP license for a BSAI TLAS yellowfin sole directed fishery endorsement, including: (1) How eligible landings would be determined; (2) the range of years during which eligible landings would need to be made (i.e., qualifying period); (3) the number of years during the qualifying period in which eligible landings would need to be made; and (4) whether the requirement for a BSAI TLAS yellowfin sole directed fishery endorsement would be removed under specific TAC conditions. In addition to other factors considered and addressed in the Analysis, the Council and NMFS considered the proposed action's consistency with allocations initially made under the Amendment 80 Program, its potential impacts on the BSAI TLAS Pacific cod fishery, and whether this proposed action would constitute a limited access privilege program as that term is defined under the Magnuson-Stevens Act. The following briefly summarizes these options and key considerations.

At its February 2017 meeting, the Council clarified that eligibility criteria should be based on trip target landings rather than directed fishing landings. Directed fishing is defined as any fishing activity that results in retention of an amount of a species on board a vessel that is greater than the maximum retainable amount for that species (see definition at 50 CFR 679.2). Under this definition, a vessel may be targeting and retaining Pacific cod but also retaining incidentally caught yellowfin sole at an amount that exceeds the maximum retainable amount for yellowfin sole. NMFS would consider the vessel to be directed fishing for Pacific cod and directed fishing for yellowfin sole in such a situation. Thus, limiting access to the BSAI TLAS yellowfin sole directed fishery based on a history of directed fishing activity could result in CVs meeting minimum landings requirements based on incidental catch of yellowfin sole.

Under this proposed rule, “trip target” would be defined as a landing in which the amount of retained BSAI TLAS yellowfin sole is greater than the retained amount of any other groundfish species for that trip. The Council's intent with this action is to provide endorsements to those CVs that were intentionally targeting yellowfin sole in the BSAI TLAS yellowfin sole directed fishery and not to provide endorsements to CVs that were intentionally targeting other groundfish species but retaining their incidental catch of yellowfin sole. Using trip target to determine eligibility would limit the potential for a vessel to qualify for participation in the BSAI TLAS yellowfin sole directed fishery based on the vessel's incidental catch of yellowfin sole. This is consistent with previous eligibility criteria for limiting access to some fisheries based on trip target, rather than directed fishing activity. In the case of this proposed action, the use of trip target to establish qualification for the BSAI TLAS yellowfin sole directed fishery endorsement would result in the same number of LLP licenses qualifying for the BSAI TLAS yellowfin sole directed fishery endorsement as there were CVs that participated in the fishery for any one year during the proposed qualifying period.

The Council considered two ranges of years for determining qualifying landings; 2008 through 2015 and 2008 through 2016. The Council selected 2008 as the start of both qualifying periods because 2008 was the first year of the BSAI TLAS yellowfin sole directed fishery. The Council ended one qualifying period with 2015, because 2015 is the year the Council initiated the analysis for Amendment 116 and the last year of participation in the fishery prior to the Council's announced control date of October 13, 2015. The Council ended the other qualifying period with 2016 to allow consideration of the most recent participants based on public testimony. In determining the two options for a qualifying period, the Council also took into consideration participation in the fishery prior to 2008 and during 2017. The Council selected 2008 through 2015 as its preferred qualifying period for eligibility for a BSAI TLAS yellowfin sole directed fishery endorsement. In selecting the 2008 through 2015 period, the Council considered the potential for future entry of capacity into the fishery, while also recognizing existing participation.

Under the 2008 through 2015 qualifying period that had at least one qualifying landing made in any one year during the period, the Analysis indicates that a total of eight LLP licenses would be eligible to receive a BSAI TLAS yellowfin sole directed fishery endorsement. Under the 2008 through 2016 qualifying period with at least one qualifying landing made in any one year during the period, ten LLP licenses would be eligible to receive a BSAI TLAS yellowfin sole directed fishery endorsement. The Council was aware of the potential for additional effort to enter the BSAI TLAS yellowfin sole directed fishery while the Council considered Amendment 116, and was aware that additional or speculative effort could enter the fishery to establish some history in it, which could impact existing participants in the fishery by further shortening the fishing season and increasing the “race for fish” (see Section 2.7.1.1 of the Analysis for a description of fishing patterns and seasons).

To dampen the effect of additional or speculative entry into the BSAI TLAS yellowfin sole directed fishery, the Council adopted a control date of October 13, 2015, which was published by NMFS in the Federal Register (80 FR 72408, November 19, 2015). Although control dates are not binding on future Council actions, the Council clearly indicated when it adopted the control date that this control date could be used to limit “future access to the offshore sector of the BSAI TLAS for yellowfin sole.” The Council also clearly noted that the control date was intended to “promote awareness that the Council may develop a future management action,” and “to provide notice to the public that any current or future access to the offshore sector of the BSAI trawl limited access fishery for yellowfin sole may be affected or restricted; and to discourage speculative participation and behavior in the fishery while the Council considers whether to initiate a management action to further limit access to the fishery.” The selection of the 2008 through 2015 qualifying period is consistent with the Council's clearly stated policy objectives and the public was clearly noticed that catch in 2016 may not be considered.

After the Council established the control date in 2015, the number of participating CVs increased from six in 2015 to nine in 2016, which is triple the maximum level of CV participation from 2008 through 2014 and nearly four times the average level of CV participation from 2008 through 2014. It is also a 33 percent increase over CV participation in 2015. Because the Council identified in 2015 the recent increase in CVs participating in the fishery to be the primary cause of shortened fishing seasons and the resulting “race for fish,” the Council was concerned that the even greater increase in CV participation after 2015 would further shorten the fishing season, increasing the risk of a “race for fish.” The Council considered, but rejected, ending the qualifying period in either 2016 or 2017, because the pace of fishing and harvest pressure increased in those years concurrent with the trend of increasing CV participation, including two vessels that participated in 2016 and another in 2017 that had never before been used to participate in the fishery. Those factors caused the fishery to close in June in 2016 and in May in 2017, compared to the November closure in 2015, which was more typical of previous season lengths. Based on the same factors, NMFS also determined that the 2008-2015 qualifying period best addresses the need to reduce fishing pressure and help to control the pace of fishing within the fishery.

In conjunction with its determination that 2008 through 2015 was the appropriate qualifying period, the Council also determined that that qualifying period coupled with one year for participation would result in an adequate number of qualifying groundfish LLP licenses and CVs to prosecute the offshore fishery at a pace similar to the pace of the fishery through 2015. The Council considered two options addressing the frequency of qualifying landings in the BSAI TLAS yellowfin sole directed fishery during the qualifying period. One option would have required qualifying landings to be made in any two years during the qualifying period. The other option would require qualifying landings to be made in any one year during the qualifying period. The one year option would limit the number of CVs in the offshore BSAI TLAS yellowfin sole directed fishery to eight. While this option would allow two more CVs to participate than participated in 2015, it would still allow the fishery to be fully prosecuted without the risk of continued increase in harvest pressure that could continue to shorten the fishing season or increase Pacific halibut PSC rates. The Council did not choose the two-year requirement, because under both qualifying periods it would have substantially limited participation in a manner that is not reflective of the current harvest patterns in the fishery. Specifically, the two-year option would have limited the number of CVs in the offshore BSAI TLAS yellowfin sole directed fishery to three CVs owned by one company, which raised some concerns about its consistency with National Standard 4. Further, this option would have excluded at least one historic participant under both qualifying periods, which would not be consistent with the Council's intent to provide continued access and benefits to historic participants. In addition, a more restrictive option is not needed to promote conservation. The Council determined, and NMFS agrees, that requiring a qualifying landing in any one qualifying year during the qualifying period of 2008 through 2015 effectively limits the potential for an increasingly challenging “race for fish” and the recent growth in the CV sector.

The Council considered a range of options that would have removed the requirements for CVs to have a BSAI TLAS yellowfin sole directed fishery endorsement to deliver to the offshore sector if the TAC allocated to the BSAI TLAS yellowfin sole fishery was above specific amounts (see Sections 2.7.2.2 and 2.7.2.3 of the Analysis). However, the Council concluded, and NMFS agrees, that options that would provide for new CV entrants during periods of high BSAI TLAS yellowfin sole allocations are not needed or appropriate. Sections 2.7.2.2 and 2.7.2.3 of the Analysis note that CVs were able to enter the offshore BSAI TLAS yellowfin sole directed fishery from 2008 through 2015 under a wide range of TACs and market conditions, and those CVs that participated in the fishery during that time period would receive endorsements under this proposed rule.

The Council also determined and NMFS agrees that relieving the limit to entry into the offshore BSAI TLAS yellowfin sole directed fishery by CVs could exacerbate the conditions that could lead to a “race for fish” and could increase halibut PSC mortality rates in the fishery. Further, an option for new entrants could create difficulties during the annual TAC setting process, as eligible CVs and new CV entrants negotiate a BSAI yellowfin sole TAC recommendation to the Council each year. This would complicate the determination of whether there would be a directed fishery for new CV entrants each year. The Council also considered the potential for participation in the offshore BSAI TLAS yellowfin sole directed fishery by CVs currently active in the Gulf of Alaska, but without recent participation in the BSAI TLAS yellowfin sole fishery. However, the Council determined that it is not necessary to provide fishing opportunities for these CVs in the BSAI TLAS yellowfin sole fishery, because these CVs have extensive flatfish resources in the GOA that have remained unharvested. NMFS agrees with the Council's finding. Therefore, no such provision is included in this proposed action.

As explained earlier, the Council and NMFS recognized at the time Amendment 80 was implemented that participation by Amendment 80 vessels as motherships in the offshore BSAI TLAS yellowfin sole directed fishery could continue or even increase. However, the proportion of the BSAI TLAS yellowfin sole directed fishery catch now being harvested by CVs that deliver their catch to Amendment 80 vessels operating as motherships is substantially greater than it was at the time the Amendment 80 Program was implemented. The final rule for the Amendment 80 Program (72 FR 52668, September 14, 2007) notes that only 1 Amendment 80 vessel was receiving and processing catch delivered from one CV in the BSAI Pacific cod fishery prior to the implementation of the Amendment 80 Program. No Amendment 80 vessel was receiving catch from CVs participating in the BSAI yellowfin sole fishery at the time the Amendment 80 Program was implemented in 2008. In 2017, 6 Amendment 80 CPs and one AFA CP operated as motherships in the BSAI TLAS yellowfin sole fishery. However, from 2003 through 2014, no more than two CP vessels participated as motherships in the BSAI TLAS yellowfin sole fishery in any one year (Section 2.7.1.1 of the Analysis). Section 2.7.1.1 of the Analysis notes that much of the increase in participation by CVs is due to an increase in the number of Amendment 80 vessels operating as motherships.

The Council determined, and NMFS agrees, that it is appropriate to review the policies adopted for the BSAI TLAS yellowfin sole directed fishery under the Amendment 80 Program and the fishing operations in that fishery, and take action, if necessary, as fishing patterns change from those observed at the time the Amendment 80 Program was implemented. As a result, the Council concluded, and NMFS agrees, it is necessary to limit access by CVs targeting BSAI TLAS yellowfin sole for delivery to vessels operating as motherships.

The Council had information on, and heard public testimony about, the potential impacts of this proposed action on the BSAI TLAS Pacific cod fishery. As noted Section 2.7.2.1 of the Analysis, most of the CVs that participate in the BSAI TLAS yellowfin sole directed fishery also participate in the BSAI TLAS Pacific cod fishery, and a CV that would not receive a BSAI TLAS yellowfin sole directed fishery endorsement for its groundfish LLP license under this proposed rule may enter or increase its participation in the BSAI TLAS Pacific cod fishery. New or increased participation in the BSAI TLAS Pacific cod fishery would only occur if there is a perceived economic benefit to doing so. A spillover effect into the BSAI TLAS Pacific cod fishery may be more likely when there are fewer CVs that have an LLP license with an endorsement to participate in the BSAI TLAS yellowfin sole directed fishery. This proposed action would limit the number of groundfish LLP licenses, and therefore the number of CVs, that could be used to harvest BSAI TLAS yellowfin sole and deliver to a mothership, and any potential spillover effect into the BSAI TLAS Pacific cod fishery would most likely come from vessels that have participated in the BSAI TLAS yellowfin sole directed fishery, but would be excluded under this proposed rule. Under this proposed rule up to eight CVs could participate in the BSAI TLAS yellowfin sole directed fishery. The maximum number of CVs that participated in the fishery from 2008 through 2017 is eleven individual vessels, with a maximum of nine participating in any one year. The proposed rule would allow eight vessels to participate under groundfish LLP licenses endorsed for the fishery. While the remaining three vessels could increase BSAI TLAS Pacific cod fishery participation, they might also decline to participate in that fishery if there is no perceived economic benefit. At this time it is not possible to predict a definitive outcome.

The Council determined during its February 2017 meeting, and NMFS concurs, that this proposed action does not meet the definition of a LAP Program included in section 303A of the Magnuson-Stevens Act (16 U.S.C. 1853a). Section 3 of the Magnuson-Stevens Act (16 U.S.C. 1802) defines a LAP as a Federal permit issued as part of a limited access system under section 303A to harvest a quantity of fish expressed by a unit or units representing a portion of the TAC of the fishery that may be received or held for exclusive use by a person and includes an individual fishing quota but does not include community development quotas.

This proposed action would limit the number of groundfish LLP licenses and therefore the number of CVs that could be used to harvest BSAI TLAS yellowfin sole and deliver that harvest to a mothership, but it would not assign a portion of the BSAI TLAS yellowfin sole TAC for exclusive use by a person. An individual owner of a groundfish LLP license that would receive an endorsement would not be allocated a specific amount of BSAI TLAS yellowfin sole that would be for the owner's exclusive use. All vessels eligible to participate in the offshore BSAI TLAS yellowfin sole directed fishery, both CPs and CVs designated on groundfish LLP licenses with the proposed endorsement, would continue to compete with each other in harvesting the BSAI TLAS yellowfin sole TAC and do not act together as one entity. Additionally, although CVs have not historically delivered their catch of yellowfin sole to shore-based processing plants, this proposed action does not preclude CVs from conducting directed fishing for BSAI TLAS yellowfin sole and delivering that harvest to shore-based processing plants. This proposed action does not limit the amount of BSAI TLAS yellowfin sole that could be harvested by a CV designated on a groundfish LLP license that has a BSAI TLAS yellowfin sole endorsement; rather, it limits the number of CVs that are eligible to participate in the directed fishery and deliver their harvest to a mothership. This proposed action does not limit CPs participating in the BSAI TLAS yellowfin sole fishery or assign a portion of the TAC for exclusive use by CPs. Finally, NMFS will maintain the ability to reallocate BSAI TLAS yellowfin sole TAC to the Amendment 80 sector if NMFS determines that it will go unharvested.

In fisheries where circumstances motivate fishermen to race against each other to harvest as much fish as they can before the annual catch limit or the PSC limit is reached and the fishery closes for the season, participants can have a substantial disincentive to take actions to reduce bycatch use and waste, particularly if those actions could reduce groundfish catch rates. In a “race for fish,” participants who choose not to take actions to reduce bycatch and waste stand to gain additional groundfish catch by continuing to harvest at a higher bycatch rate, at the expense of any vessels engaged in bycatch avoidance. By limiting CV access to the offshore BSAI TLAS yellowfin sole fishery and reducing pressure to harvest the BSAI TLAS yellowfin sole TAC quickly, this proposed action would help to reduce incentives for a “race for fish” and provide participating CVs more flexibility in fishing operations, allowing them to better avoid halibut PSC.

Additionally, industry participants have testified to the Council that some companies participating in the BSAI TLAS yellowfin sole directed fishery reduce halibut mortality in the fishery through implementing “best practices” agreements designed to reduce halibut mortality. Such testimony indicated that these agreements have included halibut mortality target rates, real-time reporting of locations with high halibut PSC, or informal apportionment of remaining halibut mortality among vessels fishing late in the year. Limiting the number of CVs in this fishery may provide a better opportunity to implement best practices agreements, because participation in the fishery would be more stable and predictable over the long term. That stability and predictability could facilitate better communication among participants. Section 2.7.1.2 of the Analysis provides additional detail on halibut PSC management practices in the BSAI TLAS yellowfin sole fishery.

Section 3.2.2.1 of the Analysis concluded that this proposed rule would not affect annual halibut PSC limits, but does have the potential to help participants maintain or reduce halibut PSC in the BSAI TLAS yellowfin sole fishery, as described above. While such savings are not guaranteed or predictable due to the suite of variables that can affect halibut PSC and rates in this fishery, the proposed action addresses concerns that increasing entry could make halibut PSC increase, is expected to maintain halibut PSC at current levels, and may even create a management environment in which the participants are able to work together to reduce halibut PSC. Additionally, the Council and NMFS do not expect any negative effects on halibut from this proposed rule because halibut PSC limits for this fishery would continue to be established each year, and the fishery would be closed if NMFS determines that the halibut PSC limit will be reached before the yellowfin sole TAC is reached.

This proposed rule would implement Amendment 116 to the BSAI FMP. This proposed rule would establish eligibility criteria for, and a process to issue, a new endorsement to groundfish LLP licenses that would authorize vessels designated on those licenses and operating in the BSAI TLAS yellowfin sole directed fishery to deliver BSAI TLAS yellowfin sole catch to a mothership. Regulations at § 679.2 define a mothership as a vessel that receives and processes groundfish from other vessels. Under this proposed rule, any vessel that meets the mothership definition at § 679.2 or has a mothership designation on its Federal Fishery Permit, including CPs and stationary floating processors, will be considered a mothership for this action. For purposes of simplicity, this preamble uses the term “BSAI TLAS yellowfin sole directed fishery endorsement” to mean an endorsement on a groundfish LLP license that would allow the vessel designated on that LLP license to deliver its catch of BSAI TLAS yellowfin sole to a mothership for processing.

Under this proposed action, NMFS would issue a BSAI TLAS yellowfin sole directed fishery endorsement to a groundfish LLP license with a Bering Sea trawl endorsement if: (1) The groundfish LLP license is credited with at least one legal trip target landing in the BSAI TLAS yellowfin sole directed fishery, and (2) the credited legal trip target landing was to a mothership in any one year of the qualifying period from 2008 through 2015. If a vessel that made at least one trip target landing in the BSAI TLAS directed fishery during the qualifying period was designated on more than one groundfish LLP license during the qualifying period, the vessel owner would be required to select one groundfish LLP license to receive credit with the qualifying landings made by that vessel during the qualifying period.

Where a vessel that made at least one trip target landing in the BSAI TLAS directed fishery from 2008 through 2015 was designated on more than one groundfish LLP license during the qualifying period, all groundfish LLP licenses on which the vessel was designated when it was used to make a trip target landing in a BSAI TLAS fishery during the qualifying period would be eligible to receive credit with the qualifying landings made by the vessel. However, none of these groundfish LLP licenses would be credited with a qualifying landing and receive an endorsement from NMFS until the vessel owner notifies NMFS and identifies which single groundfish LLP license is to be credited with the qualifying landing(s).

Based on the information provided in the Analysis and the official record, NMFS has determined that ten groundfish LLP licenses would be eligible to be credited with qualifying landing(s) and receive a BSAI TLAS yellowfin sole directed fishery endorsement. Two were the sole groundfish LLP license on which a vessel that made a qualifying landing during the qualifying period was designated. Therefore, under this proposed rule, those two groundfish LLP licenses would be credited with a qualifying landing and receive a BSAI TLAS directed fishery endorsement. The remaining eight eligible groundfish LLP licenses were each one of two groundfish LLP licenses designated on a vessel that made qualifying landings during the qualifying period; therefore, those eight groundfish LLP licenses would be eligible to be credited with a qualifying landing and receive an endorsement. For any of those eight groundfish LLP licenses to be credited with a qualifying landing and receive an endorsement, the vessel owner would be required to select one groundfish LLP license that NMFS is to credit with all qualifying landings made by that vessel. Up to six of those eight groundfish LLP licenses could be credited with a qualifying landing and receive an endorsement from NMFS. Therefore, NMFS anticipates that a total of eight groundfish LLP licenses could receive a BSAI TLAS yellowfin sole directed fishery endorsement under the proposed rule, resulting in up to eight vessels that could participate in the BSAI TLAS yellowfin sole directed fishery and deliver their catch to a mothership.

This provision would ensure that in cases where a vessel was designated on more than one groundfish LLP license during the qualifying period when one or more qualifying BSAI TLAS trip target landings were made, only one of those groundfish LLP licenses would be credited with the qualifying landing(s). Because NMFS does not require vessel owners and operators to specify how specific landings should be credited to multiple groundfish LLP licenses on which the same vessel was designated, this provision would resolve any disputes that may arise about the assignment of specific landings by having the vessel owner identify one groundfish LLP license to credit with the qualifying landing(s).

Any vessel designated on a groundfish LLP license with a BSAI TLAS yellowfin sole directed fishery endorsement would be authorized to deliver catch of BSAI TLAS yellowfin sole in the directed fishery to a mothership. This proposed rule would not preclude a vessel with a BSAI TLAS yellowfin sole directed fishery endorsement from delivering catch of yellowfin sole that is harvested in the BSAI TLAS yellowfin sole directed fishery to a shore-based processing plant. This proposed rule also would not preclude a vessel without a BSAI TLAS yellowfin sole directed fishery endorsement from delivering incidental catch of yellowfin sole that is caught while participating in other directed fisheries to a mothership for processing. For example, a vessel without a BSAI yellowfin sole directed fishery endorsement could participate in the BSAI TLAS Pacific cod directed fishery and deliver its directed catch of Pacific cod with its incidental catch of BSAI TLAS yellowfin sole to a mothership, provided that the vessel has met all applicable requirements to participate in the BSAI TLAS Pacific cod directed fishery and the incidental catch of BSAI TLAS yellowfin sole is at or under the maximum retainable amount (MRA) for yellowfin sole. Finally, this proposed action would not preclude a vessel from participating as a CP and processing its own catch in the BSAI TLAS yellowfin sole directed fishery. Under this proposed rule a vessel that does not have a BSAI Trawl Limited Access Sector yellowfin sole directed fishery endorsement would be prohibited from delivering yellowfin sole harvested with trawl gear in the BSAI Trawl Limited Access Sector yellowfin sole directed fishery to a mothership, as defined at § 679.2. The following sections of this preamble describe how NMFS proposes to determine a trip target landing, credit qualifying landings to a groundfish LLP license, and issue BSAI TLAS yellowfin sole directed fishery endorsements.

NMFS can determine which and how many landings, where landing means offloading fish (50 CFR 679.2), were made by a vessel designated on a specific groundfish LLP license during a particular timeframe. Regulations at 50 CFR 679.4(k) require an LLP license holder to designate a specific vessel on which the license will be used. This requirement allows NMFS to credit landings to a specific LLP license. NMFS also collects vessel landings data, which includes information on the species and amounts landed. From these data, NMFS has created an official record with all relevant information necessary to determine legal trip target landings that can be credited to BSAI groundfish LLP licenses.

The official record created by NMFS contains vessel landings data and the groundfish LLP licenses to which those landings are credited. Evidence of the number and amount of trip target landings of BSAI TLAS yellowfin sole is based on legally submitted NMFS weekly production reports for CPs and State of Alaska fish tickets for CVs. Historically, NMFS has used only these two data sources to determine the specific amount and location of landings, and NMFS proposes to continue to do so under this action. The official record includes the records of specific groundfish LLP licenses, including vessels designated on them, and other relevant information necessary to credit landings to specific groundfish LLP licenses. NMFS presumes the official record is correct, and a person wishing to challenge the presumptions in the official record would bear the burden of proof through an evidentiary and appeals process.

In order for a groundfish LLP license to receive a BSAI TLAS yellowfin sole directed fishery endorsement and be authorized to conduct directed fishing for BSAI TLAS yellowfin sole and deliver that catch to a mothership, NMFS would first have to determine that the groundfish LLP license is an eligible license and then would have to determine that the eligible license can be credited with one or more qualifying landings. Under this proposed rule, NMFS would identify as eligible those groundfish LLP licenses with a Bering Sea trawl endorsement and those vessels using trawl gear operating under the authority of that groundfish LLP license when (1) the vessel was used to make a trip target landing in the BSAI TLAS yellowfin sole directed fishery during any year from 2008 through 2015 and (2) the catch from that trip target landing of BSAI TLAS yellowfin sole was delivered to a mothership for processing.

Based on the official record, NMFS has identified ten groundfish LLP licenses that would be eligible to be credited with qualifying landings. Two of these eligible groundfish LLP licenses were the sole groundfish LLP license on which a given vessel was designated at the time the vessel made qualifying landings of BSAI TLAS yellowfin sole. Therefore, NMFS would credit these two groundfish LLP licenses with the qualifying landings under this proposed rule. NMFS proposes to list these two groundfish LLP licenses in Table 52 to part 679. The remaining eight eligible groundfish LLP licenses were not the sole groundfish LLP license on which a given vessel was designated at the time the vessel made at least one trip target in the BSAI TLAS fishery during the qualifying period. Because this proposed rule would require in such cases that the vessel owner specify one groundfish LLP license to receive credit with the qualified landing(s) made by that vessel, NMFS would not be able to credit these groundfish LLP licenses until NMFS receives notification from the vessel owner which groundfish LLP license should be credited with the qualifying landing(s). NMFS proposes to list in Table 53 to part 679 the eight groundfish LLP licenses that would be eligible for, but would not be credited with, qualifying landings until notification from the vessel owner is received by NMFS. The proposed notification process is described in the following section.

The groundfish LLP licenses identified in proposed Tables 52 and 53 to 50 CFR part 679 represent the groundfish LLP licenses that NMFS has determined would be eligible for an endorsement at this time. Additional groundfish LLP licenses may qualify for an endorsement through the proposed administrative adjudicative process described below. NMFS is proposing to list the groundfish LLP licenses it has determined are eligible to receive the BSAI TLAS yellowfin sole directed fishery endorsement to help facilitate the ability of the public to review their catch records and determine if additional groundfish LLP licenses may be eligible to receive the endorsement. NMFS specifically requests public comment on the groundfish LLP licenses listed in proposed Tables 52 and 53 to part 679.

If a holder of a groundfish LLP license believes the groundfish LLP license would meet the eligibility criteria, but the license is not listed in proposed Tables 52 or 53 to part 679, or if a license holder disagrees with the groundfish LLP license to which NMFS would assign the BSAI TLAS yellowfin sole directed fishery endorsement, the holder would have the opportunity to challenge NMFS' determination as described in the following section of the preamble.

NMFS has determined the groundfish LLP licenses identified in proposed Table 52 can be credited with qualifying landings based on the official record and would receive a BSAI TLAS yellowfin sole endorsement under Amendment 116 and this proposed rule. If Amendment 116 is approved and this proposed rule is finalized, NMFS would issue a notification of eligibility and a revised groundfish LLP license with a BSAI TLAS yellowfin sole directed fishery endorsement to the holders of the groundfish LLP licenses identified in proposed Table 52, using the address on record at the time the notification is sent.

NMFS has determined the groundfish LLP licenses identified in proposed Table 53 are eligible to be credited with qualifying landings based on the official record. However, the vessels that made qualifying landings while designated on these groundfish LLP licenses were designated on more than one groundfish LLP license during the qualifying period. Therefore, none of the groundfish LLP licenses in proposed Table 53 can be credited with qualifying landings until the owner of the vessel designated on those groundfish LLP licenses identifies which groundfish LLP license is to be credited with the qualifying landings. Under this proposed rule, NMFS would mail the vessel owner a notification of eligibility for those groundfish LLP licenses, using the address on record at the time the notification is sent. The notice would ask the vessel owner to submit to NMFS a written request to credit the qualifying landings, in accordance with proposed regulations at § 679.4(k)(14)(v)(F), to one groundfish LLP license selected by the vessel owner from the list of eligible groundfish LLP licenses provided by NMFS in the notice. NMFS would also send a notification of eligibility to the holders of each of those groundfish LLP licenses identified in proposed Table 53 using the address on record at the time the notification is sent. NMFS would issue a revised groundfish LLP license with a BSAI TLAS yellowfin sole directed fishery endorsement to the holder of the groundfish LLP license selected by the vessel owner in the written request to NMFS. NMFS would also send a notification to the holder of the groundfish LLP license not selected by the vessel owner to be credited with qualifying landings, using the address on record at the time the notification is sent, informing the holder that the groundfish LLP license was not credited with a qualifying landing and would not receive a BSAI TLAS yellowfin sole endorsement. NMFS would provide a single, 30-day evidentiary period from the date that notification is sent for a groundfish LLP license holder to submit any information or evidence to demonstrate that the information contained in the official record is inconsistent with the holder's records.

For all those groundfish LLP licenses with a Bering Sea trawl designation, but not listed in either proposed Table 52 or 53, NMFS would notify the holders that the groundfish LLP license is not eligible for a BSAI TLAS yellowfin sole directed fishery endorsement based on the official record, using the address on record at the time the notification is sent. NMFS would provide the holder with an opportunity to submit information to NMFS to rebut the official record. NMFS would provide a single, 30-day evidentiary period from the date that notification is sent for a groundfish LLP license holder to submit any information or evidence to demonstrate that the information contained in the official record is inconsistent with the holder's records.

Under this proposed rule, a groundfish LLP license holder who submits claims that are inconsistent with information in the official record would have the burden of proving that the submitted claims are correct. NMFS would not accept claims that are inconsistent with the official record, unless they are supported by clear, written documentation. NMFS would evaluate all additional information or evidence submitted within the 30-day evidentiary period. If NMFS determines that the additional information or evidence proves that the groundfish LLP license holder's claims are correct, NMFS would amend the official record in accordance with that information or evidence. However, if, after the 30-day evidentiary period, NMFS determines that the additional information or evidence does not prove that the groundfish LLP license holder's claims were correct, NMFS would deny the claim. NMFS would notify the applicant that the additional information or evidence did not meet the burden of proof to overcome the official record through an initial administrative determination (IAD).

NMFS' IAD would indicate the deficiencies and discrepancies in the information or evidence submitted in support of the claim. NMFS' IAD would indicate which claims could not be approved based on the available information or evidence, and provide information on how an applicant could appeal an IAD. The former procedure for appealing an IAD to the NMFS' Alaska Office of Administrative Appeals was described at § 679.43. However, NMFS has centralized the appeals process in the National Appeals Office, which operates out of NMFS' headquarters in Silver Spring, MD. The National Appeals Office is now charged with processing appeals that were filed with the Office of Administrative Appeals, Alaska Region. The procedure for appealing an IAD through the National Appeals Office is at 15 CFR part 906 (79 FR 7056, February 6, 2014). During the pendency of an administrative adjudication leading to a final agency action, NMFS would issue an interim (temporary, non-transferable) license to an applicant who was authorized to participate in the fishery in the year before the IAD is issued and who makes a credible claim to eligibility for a BSAI TLAS yellowfin sole fishery endorsement. An applicant who was issued a license the previous year would be eligible for a non-transferable interim license pending the resolution of his or her claim pursuant to the license renewal provisions of 5 U.S.C. 558. The non-transferable, interim license would authorize the applicant to deliver BSAI TLAS yellowfin sole to a mothership for processing and would be effective until final agency action on the appeal. At that time, the person who appealed would receive either a transferable license with the endorsement or a transferrable license without the endorsement, depending on the final agency action.

The following provides a brief summary of the regulatory changes that would be made by this proposed rule.

This proposed rule would add § 679.4(k)(14) to include the provisions that are necessary to qualify for, and receive, a BSAI TLAS yellowfin sole directed fishery endorsement.

This proposed rule would add § 679.7(i)(11) to prohibit the delivery of yellowfin sole harvested with trawl gear in the BSAI TLAS directed fishery to a mothership without a copy of a valid LLP with a BSAI TLAS yellowfin sole directed fishery endorsement except as provided in § 679.4(k)(2). Section 679.4(k)(2) lists the specific conditions under which vessels are not required to be designated on LLP licenses to harvest groundfish. None of the vessels currently exempted from the requirements to be designated on an LLP license under § 679.4(k)(2) participate in the BSAI TLAS yellowfin sole directed fishery.

This proposed rule would add Table 52 to part 679 to list those groundfish LLP licenses that NMFS has determined would be eligible, would be credited with qualifying landings, and would receive a BSAI TLAS yellowfin sole directed fishery endorsement under this proposed rule.

This proposed rule would also add Table 53 to part 679. Table 53 would list those pairs of groundfish LLP licenses that NMFS has determined would be eligible to be credited with qualifying landings, such that each pair was designated on the same vessel that made the qualifying landings. Because only one groundfish LLP license could be credited with the qualifying landings, the owner of the vessel designated on the pair of groundfish LLP licenses would notify NMFS which one groundfish LLP license of the pair should be credited with the qualifying landings. Upon receipt of the written notification from the vessel owner, NMFS would credit the qualifying landings to the one groundfish LLP license of the pair selected by the vessel owner and issue it a BSAI TLAS yellowfin sole directed fishery endorsement.

Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 116, the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendment 116 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the Initial Regulatory Flexibility Analysis section.

This IRFA was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), to describe why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting and recordkeeping requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of the proposed action, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here.

The directly regulated entities under this proposed rule are (1) holders of groundfish LLP licenses that authorize a vessel designated on the LLP license to harvest groundfish using trawl gear in the Bering Sea and (2) vessel owners that must choose one of two LLP licenses on which the vessel was designated during the qualifying period. Based on the best available and most recent complete data from 2008 through 2017, 163 groundfish LLP license holders and five vessel owners would be directly regulated by this proposed action.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

The RFA requires consideration of affiliations between entities for the purpose of assessing whether an entity is classified as small. The AFA pollock and Amendment 80 cooperatives are types of affiliation between entities. All of the AFA and Amendment 80 cooperatives have gross annual revenues that are substantially greater than $11 million. Therefore, NMFS considers members in these cooperatives “affiliated” large (non-small) entities for RFA purposes.

Of the 163 groundfish LLP license holders directly regulated by the proposed action, 128 were members of an AFA cooperative and 26 were members of an Amendment 80 cooperative in 2017. Therefore, NMFS considers those 154 groundfish LLP license holders to be “affiliated” large (non-small) entities for RFA purposes. All of the groundfish LLP licenses with designated vessels that participated in the BSAI TLAS yellowfin sole directed fishery and delivered catch to a mothership from 2008 through 2017 were affiliated with either an AFA or an Amendment 80 cooperative in 2017. NMFS therefore considers these LLP license holders to be “affiliated” large (non-small) entities for RFA purposes. The remaining nine groundfish LLP license holders are not affiliated with AFA or Amendment 80 cooperatives and are assumed to be small entities directly regulated by this action for purposes of the RFA. All five vessel owners who are considered regulated entities under this proposed rule were affiliated with either an AFA pollock or an Amendment 80 cooperative in 2017. Therefore, NMFS considers them “affiliated” large (non-small) entities for RFA purposes. This IRFA assumes that each vessel owner and each groundfish LLP license holder is a unique entity; therefore, the total number of directly regulated entities may be an overestimate because some vessel owners and groundfish LLP license holders are likely affiliated through common ownership. These potential affiliations are not known with the best available data and cannot be predicted.

Under this proposed rule, access to the BSAI TLAS yellowfin sole directed fishery by vessels that deliver their BSAI TLAS yellowfin sole directed fishery catch to a mothership for processing would be limited to only those vessels designated on a groundfish LLP license with a BSAI TLAS yellowfin sole directed fishery endorsement. However, no small entities would qualify to hold a groundfish LLP license with such an endorsement. None of the nine LLP license holders who are considered small entities regulated under this proposed rule are expected to be adversely impacted by this proposed rule. Based on a review of fishery data from 2008 through 2017, none of those nine groundfish LLP licenses had designated on it a vessel that delivered BSAI TLAS yellowfin sole directed fishery catch to a mothership for processing. This proposed rule would not limit existing delivery patterns by vessels designated on those nine LLP licenses. This proposed rule would limit the future opportunity for the holders of these nine LLP licenses to deliver BSAI TLAS yellowfin sole directed fishery catch to a mothership for processing. The lack of any quantitative data on potential future delivery patterns makes it impossible to rigorously assess the expected economic impact of limiting these nine LLP license holders from future deliveries of BSAI TLAS yellowfin sole directed fishery catch to a mothership for processing.

The RFA requires identification of any significant alternatives to the proposed rule that accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize any significant economic impact of the proposed rule on small entities. The Council considered a status quo alternative and one action alternative with several options and suboptions. The combination of options and suboptions under the action alternative provided a reasonable range of potential alternative approaches to status quo management.

Under the status quo, there would be a risk of continued increasing harvest effort resulting in shorter fishing seasons and higher halibut PSC rates. The action alternative would accomplish the stated objectives of prioritizing a portion of the BSAI TLAS yellowfin sole TAC for harvest by historic participants that deliver their catch to motherships for processing and maintaining a steady fishing pace and season duration, while minimizing adverse economic impacts on small entities and the potential for increasing harvest effort that shortens fishing seasons and increases Pacific halibut PSC rates. The action alternative does not affect any sector's BSAI TLAS yellowfin sole allocation or the BSAI TLAS yellowfin sole TAC.

The Council considered a range of dates, varying levels of participation, and a suite of mechanisms to provide greater harvesting and processing opportunities for CVs to deliver to offshore processors during periods of high BSAI yellowfin sole TAC. The Council recommended the proposed combination of dates and participation level to relieve the recent increase in harvest pressure and rate and give historic fishery participants sufficient opportunity to harvest and deliver BSAI TLAS yellowfin sole to motherships without increasing the risk of shorter fishing seasons and higher Pacific halibut PSC rates.

The Council and NMFS considered two alternatives. Alternative 1, the no action alternative, would not limit access by catcher vessels to the offshore BSAI TLAS yellowfin sole directed fishery. Alternative 2 would limit access by CVs to the offshore BSAI TLAS yellowfin sole directed fishery.

Under Alternative 2, two options with four and eight suboptions, respectively, were considered. The suboptions under Option 1 would limit access to the fishery to CVs with qualifying deliveries to a mothership from 2008 through 2015 in either any one or any two years or from 2008 through 2016 in either any one or any two years. Suboptions under Option 2.1 would allow all CVs with BSAI trawl endorsements access to the fishery when the TAC assigned to the BSAI TLAS is equal to or greater than an amount in a range of suboptions from 15,000 mt through 30,000 mt. Suboptions under Option 2.2 would limit access to the fishery by CVs that do not meet landings qualifications under Option 1 to a portion of the BSAI TLAS yellowfin sole TAC equal to or greater than an amount in a range of suboptions from 15,000 mt through 30,000 mt. The combination of options and suboptions under Alternative 2 provided the Council and NMFS with a broad range of alternative policy considerations relative to the no action alternative (Alternative 1). The proposed rule incorporates the preferred option and suboption under Alternative 2 which would limit access to the fishery to CVs with qualifying deliveries to a mothership from 2008 through 2015 in any one year, because that combination would best prevent increased catcher vessel participation from reducing the benefits the fishery provides to historic and recent participants, mitigate the risk that a “race for fish” could develop, and help to maintain the consistently low rates of halibut bycatch in the BSAI TLAS yellowfin sole directed fishery.

No duplication, overlap, or conflict between this proposed action and existing Federal rules has been identified.

This proposed rule does not add additional reporting or recordkeeping requirements for the vessels that choose to submit an appeal. An appeal process exists for LLP license endorsement issuance. No small entity is subject to reporting requirements that are in addition to or different from the requirements that apply to all directly regulated entities. No unique professional skills are needed for the LLP license or vessel owners or operators to comply with the reporting and recordkeeping requirements associated with this proposed rule. This proposed rule would not implement or increase any fees that NMFS collects from directly regulated entities. The Analysis prepared for this action identifies no operational costs of the endorsement (see ADDRESSES).

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. These requirements have been submitted to OMB for approval under a temporary new information collection, to be merged after approval with OMB Control Number 0648-0334. The public reporting burden for the collection-of-information requirements in this proposed rule is estimated to average two hours per response for a one-time Election to Assign Qualifying Landings to an LLP license and 4 hours per response to submit an appeal, which includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding (1) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (2) the accuracy of the burden estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-5806.

Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows: